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[2017] ZAECPEHC 14
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L.M.P v C.T.M (590/2014) [2017] ZAECPEHC 14 (14 February 2017)
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Certain
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NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case No: 590/2014
In
the matter between:
L.
M. P.
Applicant
AND
C.
T. M.
Respondent
Coram:
Chetty J
Heard:
31 January 2017 and 1 February 2017
Delivered:
14 February 2017
JUDGMENT
Chetty
J:
[1]
The protagonists to these proceedings, and a raft of antecedent
litigation, were once a married couple. On 14 February 2007,
the
bonds of their marital relationship was dissolved by order of the
Southern Divorce Court and the deed of settlement concluded
between
them was incorporated in the divorce order. Of relevance to these
proceedings is clause 3, which, under the rubric,
Minor Child
provided as follows:
“
3.
MINOR CHILD
The
custody and control of the minor child born of the marriage. “
L M is awarded to the Defendant, with the right of reasonable
access,
at all reasonable times by prior arrangements between the parties, to
the Plaintiff.”
[2]
On 24 February 2014, the applicant launched proceedings in this court
in which the relief sought is, notwithstanding its inelegant
formulation, quintessentially, for sole guardianship of L, now aged
thirteen (13). The respondent filed a notice of opposition
and a
counter application wherein he sought wide ranging relief which,
given the crisp triable issue, has fallen by the wayside.
At the
hearing on 19 February 2016 and by agreement between the parties an
order was made, inter alia, appointing Dr
Gillian
Smale
,
a clinical psychologist to render therapeutic services to the parties
and L for a two-fold purpose, to wit, to establish whether
the
relationship between the respondent and L could be restored with the
aid of further therapy, and whether meaningful communication
between
the parties concerning issues pertaining to L and her best interests
could be restored. The order furthermore obligated
Dr
Smale
to compile a report in congruity with her assignment and the
application was referred for oral evidence.
[3]
Dr Smale conducted extensive interviews with the parties and L and
concluded her report as follows: -
“
RECOMMENDATIONS
1.
Further
therapy is unlikely to be productive at this stage and was therefore
terminated.
2.
L
should not be forced to see her father but she should be supported by
her mother and family should she ever feel ready to initiate
contact
with her father. Her mother should desist saying negative things
about Dr M. to minimise the possibility that L would experience
a
conflict of interests should she ever be ready to initiate contact
with her father on her own.
3.
Dr
M. should be encourage to continue to send L friendly and
affectionate text message on her birthday and other special
occasions,
without initially expected or demanding a reply. He has
her cell number. This might be one way that he might still be able to
establish
credibility again with his daughter who might then, in her
own time, feel ready to get to know him again.”
[4]
At the hearing before me, the parties were ad idem that the
applicant’s claim for sole guardianship of L was, as adumbrated
above, the only issue which fell for decision. It will be gleaned
from the aforegoing historical overview that the order awarding
custody of L to the applicant contained no reference to guardianship.
In terms of our common law, the respondent thus retained
his
guardianship, albeit with certain limitations. The promulgation of
the
Children’s
Act
[1]
,
and in particular, s 18, which came into operation on 1 July 2007,
remodelled certain of the common law principles, and it is
apposite,
given the plethora of germane legislative provisions to quote the
relevant portion of the commentary where the learned
authors
[2]
state: -
“
At
common law, the term 'guardianship' had a wide and a narrow meaning.
The meaning of 'guardianship' as defined in the Act more
or less
corresponds to the narrow meaning the term had at common law, namely
the capacity to administer a minor's estate on his
or her behalf, and
to assist the minor in legal proceedings and the performance of
juristic acts. In the wide sense it also included
custody. Section
18(3) of the Act essentially codifies the narrow meaning of the term
by obliging a guardian to administer and
safeguard the child's
property and property interests, assist or represent the child in
administrative, contractual and other legal
matters, and give or
refuse any consent that is legally required in respect of the child.
Section 18(3)(c)
contains a non-exhaustive list of the juristic acts for which consent
is legally required in respect of a child.
The acts that are listed
in s 18(3)(c) are similar to those for which s 1(2) of the
Guardianship Act required the consent of both
parents of a legitimate
child. However, the scope of s 18(3)(c)(iii) of the Act is wider than
that of s 1(2)(c) of the Guardianship
Act. While s 1(2)(c) of the
Guardianship Act applied only to the removal of the child from the
Republic, s 18(3)(c)(iii)
of the Act extends to the child's
departure from the Republic. In contrast, s 18(3)(c)(v) of the
Children's Act is narrower than
s 1(2)(e) of the Guardianship Act,
for, unlike s 1(2)(e) of the Guardianship Act, s 18(3)(c)(v) of
the Act does not apply
to any right to immovable property which
belongs to the child. Thus, for example, s 18(3)(c)(v) of the Act
does not cover alienation
of rights in respect of immovable property
the child may have as a fiduciary.
Subsections
(4) and (5) of s 18 recast and extend the scope of the rule on equal,
concurrent powers of guardianship that was contained
in s 1(2) of the
Guardianship Act. Like s 1(2) of the Guardianship Act, sub-ss (4) and
(5) of s 18 of the Children's Act allow
any guardian of a child to
exercise any responsibility or right arising from his or her
guardianship independently and without
the consent of the other
guardian(s), but they subject this general rule to an exception.
Comparing the provisions of the Act to
those of s 1(2) of the
Guardianship Act, the exception in the Act appears to be more
extensive than that which appeared in the
Guardianship Act. In terms
of the Act, a guardian's power to act independently is subject not
only to the requirement of joint
consent for the juristic acts that
are listed in s 18(3)(c) and to any order of a competent court, but
also to 'any other law'.
Section 1(2) of the Guardianship Act did not
expressly subject guardians' powers of equal, concurrent guardianship
to 'any other
law'. However, it is submitted that nothing turns on
this difference, as it is self-evident that guardians could only
exercise
their powers of guardianship in terms of the Guardianship
Act independently if independent exercise did not violate the
provisions
of any other law.”
[5]
Notwithstanding the aforegoing legislative prescripts and common law
provisions which accord to both parents equal and concurrent
powers
of guardianship, a court of law, as the upper guardian of all minors,
retains its inherent jurisdiction to grant to
either parent
sole guardianship or sole custody when it considers it to be in the
interests of the minor child. Our case law accentuates
the
paramountcy of that principle and has, over the years, laid down
certain guidelines, perhaps, the most instructive, the criteria
listed by King J in
McCall
v McCall
[3]
as follows: -
“
(a)
the
love, affection and other emotional ties which exist between parent
and child and the parent's compatibility
with the child;
(b)
the
capabilities, character and temperament of the parent and the impact
thereof on the child's needs and desires;
(c)
the
ability of the parent to communicate with the child and the parent's
insight into, understanding of and sensitivity
to the child's
feelings.
(d)
The
capacity and disposition of the parent to give the child the guidance
which he requires;
(e)
the
ability of the parent to provide for the basic physical needs of the
child, the so-called 'creature comforts',
such as food, clothing,
housing and the other material needs - generally speaking, the
provision of economic security;
(f)
the
ability of the parent to provide for the educational well-being and
security of the child, both religious
and secular;
(g)
the
ability of the parent to provide for the child's emotional,
psychological, cultural and environmental development;
(h)
the
mental and physical health and moral fitness of the parent;
(i) the
stability or otherwise of the child's existing environment, having
regard to the desirability of maintaining
the
status
quo
;
(j)
the
desirability or otherwise of keeping siblings together;
(k)
the
child's preference, if the Court is satisfied that in the particular
circumstances the child's preference
should be taken into
consideration;
(l)
the
desirability or otherwise of applying the doctrine of same sex
matching, particularly here, whether a boy
of 12 (and Rowan is almost
12) should be placed in the custody of his father; and
(m)
any
other factor which is relevant to the particular case with which the
Court is concerned.”
[6]
In determining whether L’s interest would best be served by an
award of sole guardianship to the applicant it is apposite
therefore
to juxtapose the evidential material, both
vive
voce
and on affidavit with the criteria enumerated in McCall. Given L’s
pre-eminence in this application, it is pertinent to commence
the
enquiry with her testimony. L, despite her youthfulness exudes
confidence and a maturity beyond her years. Her narrative (in
chief)
of the interaction between herself and the respondent traversed the
period of her earliest recall to the present day and,
sadly,
accentuates the chasm between father and daughter. The extent of that
filial disintegration was encapsulated by her riposte
to a question
posed under his cross-examination -
“
I
want nothing to do with you.”
The
suggestion that her answer was the product of not only hurt and
rejection but engineered by the applicant can readily be discounted.
My observation of her in the witness box decries any notion that she
is manipulable and her testimony, tailored. The respondent’s
characterisation of her evidence as untruthful demonstrates, quite
unequivocally, the schism between them.
[7]
An analysis of the evidence adduced shows that the opposition to sole
guardianship is actuated purely by the respondent’s
truculence
towards the applicant’s current marital status. This animosity
surfaced during his cross-examination of the applicant
when he
berated her for living with her husband prior to the solemnisation of
their marriage. This, he pontificated, was morally
reprehensible and
had had a deleterious effect of L. The respondent’s angst is
entirely misconceived and at variance with
the accepted facts. Both
the applicant and L espouse the familial bond which the applicant’s
remarriage has wrought upon
them.
[8]
There is no doubt that L’s economic security is more than
adequately catered for in her current home environment. The
bond
between mother and daughter is readily apparent, nurtured and
sustained, no doubt by the applicant’s devotion to L.
Contrariwise, the respondent’s rebuff of her in the shopping
mall. I accept L’s evidence that he was dismissive
of
her. Such conduct is completely at variance with his evidence that he
was a caring father. It is common cause that he denied
paternity and
the explanation tendered thereanent is patently nonsensical. The
attendant emotional trauma must inevitably have
had a profound effect
on L and his insensitive behaviour was clearly not in her best
interest.
[9]
It is abundantly clear that the applicant’s remarriage is the
unending source of the respondent’s belligerence towards
her
and the underlying motivation for opposing her application. Two
examples will suffice to demonstrate that L’s best interests
are secondary to his. It is common cause that L was selected to
participate in a synchronized swimming event at the Commonwealth
Student games in Perth, Australia. It is furthermore not in issue
that in order to acquire the requisite transit documents the
respondent’s written consent was required. Although the
respondent sought to deny that he wilfully withheld his consent,
his
denial is patently false. I accept that the applicant’s
recourse to this court was actuated by his refusal and, given
L’s
passion for her sport, the respondent’s intransigence clearly
not in her best interests.
[10]
Secondly, the respondent’s obdurateness in seeking to thwart
the applicant’s endeavours to provide the best scholastic
path
for L is further exemplified by his puerile behaviour concerning her
intended placement at Collegiate Primary. Despite his
protestations
to the contrary, I accept the applicant’s evidence that he was
deliberately obstructive. Here too, his conduct
was clearly not in
her best interests. In the result the following order will issue: -
1.
The
applicant is awarded sole guardianship of L.
2.
The
respondent is ordered to pay the costs of this application including
the qualifying fees of Dr Smale and the costs of the interlocutory
application.
______________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
Obo
the Applicant:
Adv A. Beyleveld S.C
Instructed by
Cecil Beyleveld Attorneys, Room 512, Oasim South, Pearson Street,
Central, Port Elizabeth
Tel:
(041) 582 1695
Obo
the Respondent:
In Person
[1]
Act No, 38 of 2005
[2]
C J Davel and A M Skelton : Commentary on the
Children’s Act
[3]
1994 (3) SA 201
(C)