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[2016] ZAECPEHC 7
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Majikija v Mxo and Another (1596/2015) [2016] ZAECPEHC 7 (8 March 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION LOCAL, PORT ELIZABETH)
CASE
NO.: 1596/2015
In
the matter between:
MAVA
MAJIKIJA
Applicant
And
NOTHEMBA PAMELA
MXO
1
st
Respondent
MAGISTRATE
TANDEKA MASHIYI N.O.
2
nd
Respondent
JUDGMENT
BESHE
J:
[1]
Today being the 25 February 2016 is the return day of the
rule
nisi
that was issued on the 1 December 2015. The said rule is in
the terms following:
1. An interim
order is granted with a return date of 25 February 2016, calling upon
the First Respondent to show cause, if any,
why the following order
should not be made a final order of Court:
1.1
the Applicant is awarded forthwith and from 1 December 2015 primary
care of the minor child, M. L. M., a boy born on [....]
2013, which
will include the right to provide the primary residence of the child,
subject to the First Respondent’s \right
to reasonable contact
with the child, including but not limited to the following:
1.1.1 the First Respondent shall have the right to have the child
with her and in her care for a period of seven (7) days every
short
school holiday and seven (7) days every long school holiday until the
child attains the age of five (5) years, when the parties
will
revisit the issue of contact between the child and the First
Respondent;
1.1.2 Christmas and New Year shall rotate between the Applicant and
the First Respondent with Christmas 2015 to be with the Applicant
and
New Year 2016 with the First Respondent;
1.1.3 the First Respondent shall have the right to have the child
with her and in her care for a period of seven (7) days during
the
December 2015 school holiday, starting from 31 December 2015, which
right will include to remove the child to Mthatha;
1.1.4 The First Respondent shall return the child to the care of the
Applicant on/or before 8 January 2016;
1.1.3 the First Respondent shall have reasonable contact with the
child at all reasonable times as arranged between the parties
when
she is in Port Elizabeth.
2.
Costs to be reserved.
[2]
Prior to the issuing of the
rule
nisi
first
respondent had given notice that she opposes the relief sought by the
applicant which concerns their minor child. The child
a boy was born
on the [....] 2013. I will refer to the minor child as “J.”
which appears to be his pet / nick name.
[3]
Because of the nature of relief sought, it became necessary that the
Family Advocate investigates the circumstances relating
to parental
responsibilities and rights, primary care, primary residence etc, of
the minor child. Pending the conclusion of this
investigation and the
availability of the Family Advocate’s report the exchange of
further affidavits was held in abeyance.
[4]
It appears to be common cause that the Family Advocate’s report
was made available to this court in November 2015. However,
up until
the 24 February 2016 the day preceding the return date, some three
months down the line, first respondent, who is the
mother of the
minor child had not filed an answering affidavit.
[5]
When the matter was called on the return date,
Mr
Dyke
who represents
the first respondent moved an application for condonation of the late
filing of the first respondent’s answering
affidavit. The
condonation, if granted would of necessity result in the postponement
of the matter to enable Family Advocate to
investigate the matter
further and for the applicant to file a replying affidavit which he
desire to do so or if so advised.
[6]
The application for condonation is opposed by the applicant on the
basis
inter alia
that the law requires matters concerning minor children to be dealt
with without delay; there is not proper condonation application;
first respondent does not tell court why it took her six weeks to
file her answering affidavit. Further that seeing as it is that
it is
suggested that she was cash strapped which affected her ability to
consult with her legal representatives, she fails to explain
how she
managed to travel from Gauteng to Mthatha fortnightly.
[7]
It is trite that a child’s best interests are paramount in
every matter concerning the child.
[1]
This principle is also countenanced in the
Children’s
Act 38 of 2005
.
Section 9 of the
Children’s Act
provides
as follows:
“
9
Best interests of child paramount
In all
matters concerning the care, protection and wellbeing of a child the
standard that the child’s best interest is of
paramount
importance, must be applied.”
In
Section 6 (4) the Children’s Act
provides that:
“
(4)
In any matter concerning a child―
(a)
an approach which is conducive to
conciliation and problem-solving should be followed and a
confrontational approach should be avoided;
and
(b)
a delay in any action or decision to
be taken must be avoided as far as possible.”
It
is with these principles in mind that I will approach this matter
together with what is stated in
Section
7 of the Children’s Act
which
outlines factors that must be taken into consideration when
determining what would be in the best interest of the child.
[8]
Rule 27 (3)
of the
Uniform Rules
of this court
provides that
“
The court may,
on good cause shown, condone any non-compliance with these rules”
.
Condonation is usually sought on notice. In first respondent’s
notice of motion, there is no mention of condonation. Hence
the
submission on behalf of the applicant that there is no condonation
application. Paragraph two of the notice of motion states
that an
order that first respondent be granted leave to file her answering
affidavit will be sought. The notice of motion contains
four other
prayers. As rightly pointed out by counsel for the applicant, it is
only in paragraph 190 that for the first time the
word condonation
appears where first respondent states:
“
I
have been advised that it appropriate (
sic
)
for me to apply for condonation of the late filing of these papers.”
She
then goes on to explain why she was unable to file her answering
affidavit timeously. Chief amongst those reasons being that
she was
not possessed of means to consult with her attorney and counsel.
Having been away in Gauteng in search of employment opportunities.
[9]
Even though the application for condonation is proceeded with in an
unconventional and confusing manner, I will accept that
the papers
disclose a request for this indulgence (condonation) as well as an
explanation for failure to timeously file an answering
affidavit.
[10]
It is common cause that when the acrimony between J.’s parents
started around April 2015, first respondent was unemployed.
This was
prevailing even at the time of the issue of the
rule
nisi
in December
2015. It also emerges from the first respondent’s affidavit
that she has since secured a job in the Gauteng Province.
One of the
first respondent’s prayers according to her notice of motion is
a request for the postponement of the matter for
further
investigation by the Family Advocate. (In light of the change in her
circumstances).
[11]
A member of the Family Advocates’ Office,
Mr
Mpushe
, who
appeared and acts to advise on what will be in the best interest of
the minor child made certain submissions in a bid to be
of assistance
to the court.
Mr
Mpushe’s
submissions
were essentially that: In view of the new developments, namely that
first respondent now has a job, there is a need
for a further
investigation to be carried out. The purpose of the investigation
would be to look into the changed circumstances
of the first
respondent,
inter
alia
how much she
earns, the environment and conditions of her accommodation, whether
it would be appropriate or conducive to the upbringing
of the minor
child, etc. He also made the point that the re-evaluation of first
respondent’s circumstances will not negatively
affect the minor
child because the
rule
nisi
is still in
place and will remain in place until a court makes a determination in
light of Family Advocate’s report after
the re-evaluation.
[12]
In my view, the best interest of
J.
can best be determined if the court has all the relevant factors
pertaining to him and his parents at its disposal. It is only
then
that the court will be in a position to determine what is in the best
interest of the minor child. It is only then that the
court will have
insight into the factors mentioned in
Section
7 of the Children’s Act
.
That will not be possible without recourse to first respondent’s
answering affidavit and the Family Advocate’s further
report.
Even though this will result in delaying a decision in this matter,
in my view more harm will be done if a decision is
taken without
considering first respondent’s circumstances, and for a
situation to arise later that will necessitate the
variation of that
order.
[13]
I am of the view that for the reasons given above, this is a proper
case where I should exercise my discretion in favour of
the first
respondent being granted leave to file her answering affidavit. So
that matters pertaining to J. can be properly ventilated
as to what
would be in his best interest in so far as who should be awarded his
primary care. I agree with what
Revelas
J
said in the
Bouwer Collins
Insurance Brokers (Pty) Ltd and Sandra Alice Margaret Hopgood &
Another Case Number 2012/12
an
unreported judgment I was referred to by
Ms
Veldsman
, namely
that:
“
[22] Generally, judges
are reluctant (as they should be), to close the doors of court to a
litigant purely for reasons relating
to non-compliance with court
proceedings ... ... ...”
.
I believe this is more so in disputes concerning children. That in
these cases the child’s best interest should not be held
at
ransom for the sake of legal niceties.
[2]
In
my view this is a case where the doors of court should not be closed
to first respondent in order for a proper evaluation to
be made as
regards
J.’s
welfare / best
interest.
[14]
In the result the following order will issue:
1.
The first respondent is granted leave to file her answering
affidavit.
2.
The office of the Family Advocate is requested to, on an urgent
basis, conduct a further investigation into the circumstances
relating to:
2.1
the full parental responsibilities and right as set out in
Section
18 (2) of the Children’s Act 38 of 2005
in respect of the
minor child born from a relationship between the applicant and the
first respondent who is the subject of
this application.
2.2
the primary care and primary residence of the said minor child and
contact with the minor child and
2.3
to report on its further investigation and make a recommendation to
this court in relations to primary care and primary residence
of the
minor child and contact therewith.
3.
The return date of the
rule nisi
that was issued on the 1
December 2015 is extended until 22 March 2016 pending the
availability of the Family Advocate’s
report and the filing of
applicant’s replying affidavit if so advised.
4.
Costs reserved.
_______________
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Applicant :
Adv:
Veldsman
Instructed
by
:
KAPLAN
BLUMBERG ATTORNEYS.
1
st
Floor, Block A, Southern Life Gardens
70 Second
Avenue
Newton Park
PORT
ELIZABETH
Ref.: L Ferns
Tel.: 041 –
363 6044
For
the Respondent :
Adv: Dyke
Instructed
by
:
BUKKY
OLOWOOKORUN ATTORNEYS
15 Annerley
Terrace
Central
PORT
ELIZABETH
Ref.: Bukky
Olowookorun
Tel.: 041 –
450 1694
Date
Heard
:
25
February 2016
Date
Reserved
:
25
February 2016
Date
Delivered
:
8
March 2016
[1]
Section 28 (2) of the Constitution.
[2]
De Gree and Another v Webb and Others 2007 (5)
SCA 184 at 220 [99].