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2023
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[2023] ZAFSHC 182
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H.C.J v N.J and Another (977/2020) [2023] ZAFSHC 182 (18 April 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FLYNOTES:
FAMILY – Children – Primary residence –
Allegations of abuse by mother and partner – Rule
nisi with
terms giving primary residence to father – Recommendations
of family advocate and report of family counsellor
– No
credible information to corroborate allegations – Both
parents found wanting in parenting skills –
Best interests
of minor children – Ordered that mother takes primary
residence of the children –
Children's Act 38 of 2005
,
s
18(2)(a).
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No. 977/2020
In
the matter between:
HCJ
Applicant
and
NJ
1st
Respondent
THE
OFFICE OF THE FAMILY ADVOCATE
2nd
Respondent
CORAM:
GUSHA, AJ
HEARD
ON
:
9 MARCH 2023
DELIVERED
ON:
This
judgment
was
delivered
electronically
by circulation to the
parties' representatives by way of email and by release to SAFLII.
The date and time for delivery is deemed
to be at 12h00 on 18 April
2023.
REASONSFORJUDGMENT
"Every child has his
or her own dignity. If a child is to be constitutionally imagined as
an individual with a distinctive
personality, and not merely as a
miniature adult waiting to reach full size, he or she cannot be
treated as a mere extension of
his or her parents, umbilically
destined to sink or swim with them. The unusually comprehensive and
emancipatory character of
section 28
presupposes that in our new
dispensation the sins and traumas of their fathers and mothers should
not be visited on their children.
Individually and collectively all
children have the right to express themselves as independent social
beings, to have their own
laughter as well as sorrow, to play,
imagine and explore in their own way, to themselves get to understand
their bodies, minds
and emotions, and above all to learn as they grow
how to make choices in the wide social and_moral world of adulthood.
And foundational
to
the enjoyment of the right to childhood is the promotion of the right
as far as possible to live in a secure and nurturing environment
free
from violence, fear, want and avoidable trauma. No constitutional
injunction can in and of itself isolate children from the
shocks and
perils of harsh family and neighbourhood
environments.
What the law can do is create conditions to protect children from the
abuse and maximize opportunities for them to
lead productive and
happy lives. Thus, even if the state cannot itself repair disrupted
family life, it can create positive conditions
for repair to take
place, and diligently seek wherever possible to avoid conduct of its
agencies which may have the effect of placing
children in peril"
[1]
.
[1]
These
sentiments articulated more than a decade ago by the Constitutional
Court, per Sachs J, albeit under different circumstances,
still ring
true even today. They embody what this case is about; the best
interests of minor children.
[2]
The
applicant (man) and the 1st respondent (woman) are former spouses,
their erstwhile marriage having been dissolved by order of
this court
on the 21st October 2021. Two minor children DJ and EJ, both girls
aged seven and six years respectively, were born
from the marriage.
[3]
In
those proceedings and in terms of
section 18(2)
(a) of the
Children's
Act, Act
38 of 2005 (Children's Act) the court awarded full parental
rights and responsibilities to both parties, with the primary care
and place of residence of the minor children awarded to the woman.
The court awarded to the man, in a phased in approach, certain
contact rights. As part of that order, certain other orders
concomitant with the patrimonial and non-patrimonial
consequences upon dissolution of a marriage were made,
which orders are irrelevant for purposes of this judgment.
[4]
Subsequent
to the divorce, the applicant approached this court on an urgent
basis seeking amongst others the following interim relief:
"4.1. That the 1st
respondent's parental responsibilities and rights be temporarily
suspended, pending the final adjudication
of this application;
4.2.
the
minor children be deemed children in need of care and protection in
terms of
section 150(1)
of the
Children's Act and
that the question
whether the minor children are children in need of care and
protection be referred to a designated social worker
for an
investigation in terms of
section 155
(2) of the
Children's Act;
4.3.
the
primary residence of the minor children be awarded to the applicant,
as contemplated in
section 18(2)(a)
of the
Children's Act;
4.4.
consent
is granted for the minor children to receive the necessary medical
care.
4.5.
The
SAPS Bloemfontein be ordered to attend at the premises of the First
Respondent, with Ms. Brenda de Jonge, which premises is
situated at
1[…] H[…] V[...], H[…] S[…] Street,
Pentagonpark, Bloemfontein and to collect the possessions
of the
Minor Children, from the house situated at 1[…] H[…]
V[...], H[…] S[…] Street, Pentagonpark,
Bloemfontein or
any other premises where they may be found and to hand same over to
Ms. De Jonge;
4.6.
The
Offices of the Family Advocate be ordered to conduct an investigation
into the best interest of the Minor Children and to recommend
such
interventions as it would deem necessary and appropriate in the
circumstances to ensure that the best interests of the Minor
Children
is upheld;
4.7.
the
First Respondent be ordered to subject herself to medical testing,
which testing should include a psychiatric evaluation, within
14 days
of the date of service of this order, the results of which should be
made available to this Honourable Court, the Offices
of the Family
Advocate and the Applicant's attorneys
of record
immediately upon receipt thereof; ...
"
[5]
The
urgent application brought by the applicant was predicated on
allegations made, primarily by Ms Lekhooa, the minor children's
erstwhile nanny, which allegations
allegedly
brought into question the woman's
suitability to
remain the primary caregiver of the minor children. These allegations
were set out in the man's founding affidavit
and to which was
appended Ms Lekhooa's confirmatory affidavit. The gist of the
allegations were that the woman and her partner
abused and neglected
the minor children. I shall revert to this.
[6]
Having
declared
the
matter
urgent,
my
learned
sister
Chesiwe
J
on
the
02nd
September 2022 granted a
rule nisi
in
the following terms;
"1…
2…
3.
A
rule nisi
is issued,
returnable on 27 October 2022 calling on the Respondents show cause,
why an order in the following terms should not be
granted on the
return day of this application in the following terms:
(a)
That
the Minor Children is deemed to be children in need of care and
protection in terms of
Section 150(1)
of the
Children's Act, Act
38
of 2005 and that the question of whether the Minor Children is in
need of care and protection be referred to a designated social
worker
for investigation in terms of
Section 155(2)
of the
Children's Act;
(b
)
That
the primary residence of the Minor Children is awarded to the
Applicant, as contemplated in
Sec 18(2)
of the
Children's Act 38 of
2005
;
(c)
That
the First Respondent shall be afforded the following contact with the
Minor Children:
(i)
Reasonable
telephonic contact or contact through any other electronic means at
least three
(3) times a week;
(ii)
Supervised
contact every alternative weekend on a Sunday during the hours from
12:00 - 15:00, which contact shall take place under
the supervision
of and at the residential address of the Applicant's mother
(hereinafter referred to as "Ms. Brenda de Jonge").
(a)
That
the Applicant's duty to pay maintenance shall cease pending final
adjudication of this application and the return of the Minor
Children
to the First Respondent's primary care;
(b)
That
the Minor Children is (sic) placed in the temporary safe care of the
Applicant;
(c)
Consent
is
granted
for
the
Minor
Children
to receive
the
necessary
medical
care,
which
includes a psychological assessment of the Minor Children.
4.
The
SAPS Bayswater be ordered to attend at the premises of the First
Respondent, with Ms. Brenda de Jonge, which premises is situated
at
1[...] H[...] V[...], H[...] S[...] Street, Pentagonpark,
Bloemfontein and to collect the possessions of the Minor Children,
from the house situated at 1[...] H[...] V[...], H[...] S[...]
Street, Pentagonpark, Bloemfontein or any other premises where they
may be found and to hand same over to Ms. De Jonge;
5.
The
Offices of the Family Advocate is ordered to conduct an investigation
into the best interest of the Minor Children and to recommend
such
interventions as it would deem necessary and appropriate in the
circumstances to ensure that the best interests of the Minor
Children
is upheld;
6.
The
First Respondent is ordered to subject herself to medical testing,
which testing should include a psychiatric evaluation, within
14 days
of the date of service of this order, the results of which should be
made available to this Honourable Court, the Offices
of the Family
Advocate and the Applicant's attorneys of record immediately upon
receipt thereof;
7.
The
prayers 3, 4, 5 and 6
supra
shall
operate as interim interdict with immediate effect pending
finalization of this application;
8.
9.
[7]
The
aforesaid
rule nisi
was
thereafter extended and eventually allocated to me for hearing on the
opposed roll on the 9
th
March
2023. Due to the urgent nature of the application and especially
because it concerned the best interests of minor children,
I gave an
ex tempore
order. My
order which was in line with the Family Advocate's recommendations
was as follows;
"1. That both
parties should remain holders of their full parental responsibilities
and rights as contemplated in
section 18
read with
sections 19
and
20
of the
Children's Act, Act
38 of 2005.
2.
That the children be returned to the care of the
1st
Respondent and that she takes primary
residence of the children as contemplated in
section 18(2)(a)
of the
Children's Act, Act
38 of
2005.
3.
The date, time and place of the handover,
including delivery of the children's documentation and clothing, to
be on the 24th March
2023 at 17h00.
4.
That a psychologist, FAMSA, or any other suitably
qualified professional be appointed to act as a case manager /
parenting coordinator.
Such a case manager/ parenting coordinator
should also assist with the following:
a.
Co-parenting,
communication and conflict management for the parties.
b.
Therapy
for the children aimed at addressing their trauma caused by exposure
to parental conflict and their relationships with their
parents.
c.
Re-evaluation
of the minor child, EJ's, ADHD and make an appropriate recommendation
therein.
d.
Mediate
any dispute that may arise from the implementation of the court's
order.
e.
Monitor,
report and make further recommendations to the court on the progress
of the implementation of the court's order.
f.
That
the Applicant should exercise his contact rights with the children,
as contemplated in
section 18
(2) (b) of the
Children's Act, Act
38
of 2008. Such contact to be exercised at the paternal grandmother's
residence for the first 3 (three) months following the
court's order:
4.6.1.
Reasonable
telephonic
contact.
4.6.2.
1(one) night sleep-over on alternate weekends
from Saturday at 09h00 until Sunday at 17h00.
4.7.
That at the end of the 3 (three) month period
contemplated in paragraph 4.6 and in consultation with the designated
psychologist,
FAMSA, or any other suitably qualified professional
contemplated in paragraph 4, the parties be assisted to draft a
parenting plan
extending the Applicant's contact rights. The
Applicant's contact rights should not be limited to the following,
except if recommended
otherwise by the designated psychologist or
other suitably qualified professional:
4.7.1.
Reasonable
telephonic
contact.
4.7.2.
Weekends
to
alternate
between
the
parties
from Friday at
17h00 until Sunday
17h00.
4.7.3.
Short school holidays to alternate between the
parties and long school holidays to be shared equally between the
parties.
4.7.4.
The parties should be encouraged to agree on any
suitable contact arrangements as and when the need arises including
contact on
birthdays; mother's and father's day; and any other
special days/holidays.
5.
Each party to pay their own costs."
[8]
These
are my reasons for doing so.
[9]
I
have already alluded to some of the factual background giving rise to
this application. What remains is to deal with the actual
reason why
we all find ourselves here, the crux of the allegations. At some
point, and whilst still a nanny to the minor children,
Ms Lekhooa via
whatsapp
[2]
messages to the man,
made allegations of child abuse and neglect as against the woman. On
the papers as well as the reports favoured
to the court, it became
apparent that the allegations also bore a much more disquieting tenor
than just neglect; to be precise,
allegations of the man allegedly
showering in the nude with the two minor children, sleeping with them
in one bed, the paternal
grandfather allegedly inappropriately
touching and kissing the minor children.
[10]
Briefly, the allegations of abuse were to the effect that the woman
and or her partner would refuse the minor children
meals and or
treats. At times they would, as punishment for not finishing their
school lunches, be made to eat same
in lieu
of dinner and or
be locked in the bathroom for 30 minutes for one or the other
misdemeanor(s). The woman would also, after hours,
take the minor
children to Ms Lekhooa's place of residence. This she would allegedly
do, whenever she wished to join her partner
at his business premises,
a bar. It is further alleged that whenever the woman left the minor
children with Ms Lekhooa, she would
leave them overnight
sans
necessities.
[11]
These
allegations are disputed by the woman. It has been submitted on her
behalf that the whatsapp messages were interpreted out
of context and
in a manner that cast her in adverse light. She however did not
dispute that, at times, she left the minor children
with Ms Lekhooa,
she however averred that these were not as frequent as alleged.
Further, that whenever the need arose to leave
the minor children
with Ms Lekhooa, she left them with their necessities and continually
checked on them.
[12]
As
this dispute concerned minor children and their welfare, the court
caused the Office of the Family Advocate to institute an
investigation. Pursuant to the
rule
nisi
granted
on the 2nd
September
2022 the Office of the Family Advocate conducted an investigation
into the best interests of the minor children and furnished
the court
with its report. Before I deal therewith, I pause here to make the
following remarks; the Office of the Family Advocate
is established
by the provisions of the Mediation in Certain Divorce Matters Act
[3]
.
The
purpose of the aforesaid Act, is amongst others, to provide for
mediation in certain divorce proceedings and in certain application
arising from arising from such proceedings, in which minor or
dependent children are involved in order to safeguard the interests
of such children. The Family Advocate shall when so requested by any
party to the proceedings or so ordered by the court concerned,
institute an enquiry to enable her to furnish the court with a report
and recommendations on any matter concerning the welfare
of each
minor child of the marriage concerned or regarding such matter as is
referred to her by the court
[4]
.
The court is required to
take into consideration any report produced by the Office of the
Family Advocate, but is not bound by the
recommendations thereof.
[13]
In
its investigations regarding the welfare of the minor children, the
Family Advocate was assisted by Mrs. Van der Westhuizen,
a registered
social worker and duly appointed Family Counsellor. As part of her
investigations Mrs. Van der Westhuizen conducted
interviews with the
minor children, their parents and their respective partners and or
housemate(s), the children's respective
educators and conducted a
telephonic interview with Ms Lekhooa. She also had regard to various
reports compiled by psychiatrists
and psychologists involved in the
assessment and or treatment of the woman and the minor children as
well as a report compiled
by Ms Jacobs, as social worker in private
practice. It would appear that well before this application, the
woman requested Ms Jacobs
to conduct an investigation into comments
of a sexual nature allegedly made by D.J about the man. Said
allegations were that the
man showers with them in the nude and that
she and her father share a secret. It would further appear that the
man, in a retaliatory
move, in
turn
requested Ms Jacobs to conduct a socio-emotional
assessment of the minor children because of his concerns
about alleged neglect of the minor children whilst in the care of
their
mother.
[14]
Having
conducted interviews with, observations and assessments of, the minor
children and their parents, individually and collectively,
the Family
Counsellor concluded in her report that there was a possibility that
the applicant might have influenced the children
before the
assessment. She noted that DJ pertinently informed her that the man
told her to inform the Family Counsellor how the
woman treated the
minor children. She further found that throughout the assessment the
children often gave contradictory information
and would often correct
themselves upon realising that their account of their situation in
their mother's care was positive instead
of being negative. The minor
children often gave the same account and used the exact same words
used by their father to describe
certain incidents and when prompted
to elaborate, they were often unable to. She concluded that the minor
children amongst others
were confused by the current situation and
lacked secure attachment with any of the parents. She further
concluded that the minor
children were exposed to the conflict
between their parents and were negatively affected thereby.
[15]
During
her interview with Ms Lekhooa, she reported that the latter did not
provide any information regarding the allegations that
the woman
would leave the minor children with her without food and other
necessities. In fact, when she broached the subject of
the care and
primary residence of the minor children, Ms Lekhooa expressed that
the minor children should be returned to the care
of the woman. It
would appear though that Ms Lekhooa made an about turn on this aspect
moments after the Family Counsellor telephonically
sought the man's
views on the statements by Ms Lekhooa.
[16]
At
the
conclusion
of
her
report,
the
Family
Counsellor
found
no
credible
information
to corroborate the allegations of neglect, emotional or physical
abuse within the maternal system. What was however
found and
diagnosed was attention deficit hyperactivity disorder (ADHD) in EJ.
It bears to be mentioned that all the experts involved
in the
assessment
of the minor children put into
question the credibility and veracity of the allegations
by
Ms Lekhooa.
For his part, the man alluded to
showering in the nude with the minor children and undertook to stop
same.
[17]
Aided
by the aforesaid report the Family Advocate in its report made
recommendations which recommendations I eventually accepted
and which
formed the basis of the final order I granted.
[18]
Aggrieved
by the recommendations of the Family Advocate, the man raised issue
therewith in his supplementary affidavit filed with
leave of the
court on the 15th February 2023. In it he asserted once more that the
interests of the minor children would best be
served if they were to
remain in his primary care. He denied any allegations of sexual abuse
and pleaded ignorance of the impropriety
of showering with the minor
children. This I find improbable. He furthermore decried what he
termed the one-sided approach of Ms
Jacobs. He made quite a number of
other allegations which had the effect of casting the woman and Ms
Jacobs in less than favourable
terms. I am loathe to overburden this
judgment any more than I already have, I will therefore not deal with
each and every one
of the allegations made, save to mention that in
arriving at the decision I made, I have considered all.
[19]
Annexed
to his supplementary affidavit, the man favoured this court with a
report from Ms. Miller, a counselling psychologist, who
provided
parenting guidance and skills to him. In the same report the man
expressed his decision to cease consuming alcohol. All
these efforts
and decisions by the man are commendable, they will certainly stand
him in good stead when exercising his contact
rights.
[20]
In
its supplementary report, compiled and filed in answer to the man's
supplementary affidavit, the Family Advocate stood by its
initial
report and the recommendations made therein.
[21]
The
facts of this case sadly are not unique, they remind me of a poignant
African proverb
"Ndovu
wawili wakisongana, ziumiazo ni nyika”
[5]
•
They are reminiscent of
the sad reality of many minor children, who more often than not, at
the end of their parents' union, find
themselves literally in a tug
of war. It is a harsh reality of life that just as partners meet,
fall in love and at times have
children together, that love often
ends (sometimes acrimoniously) and they separate. Alive to this fact,
I can only express the
hope that once that eventuality arises, the
partners, as the adults and presumably the more mature beings, would
have the presence
of mind not to put their offspring in the middle of
their acrimony and thereby visit their sins and traumas on their
offspring.
[21]
It
is against this rather unfortunate and heart-rending factual
background that this court, as the upper guardian of all minors,
is
called upon to determine the minor children's primary residence,
differently put, what in the circumstances of this case best
serves
the interests of the minor children. It is indeed difficult in
matters that involve a minor child's primary residence to
decide
which home is better than the other. The court is in a position of an
outsider, looking in from the outside, as it were.
It is against that
locale that the court is called upon, to weigh the competing
advantages and disadvantages of the circumstances
of both parents as
presented in the reports before the court.
[22]
In
order to arrive at the aforesaid determination, this court will be
guided by what is in the best interests of the minor children
with
due regard to the factors as listed in
section 7
of the
Children's
Act. It
is after all a constitutional imperative that in all matters
dealing with and or involving children, the best interests of the
child are paramount
[6]
•
When dealing with the best interests of the child the court in
McCall
v McCall
[7]
held
as follows;
"In determining what
is in the best interest of the child, the Court must decide which of
the parents is better able to promote
and ensure his physical, moral,
emotional and spiritual welfare. This can be assessed by a reference
to certain factors or criteria
which are set out hereunder, not in
order of importance, and also bearing in mind that there is a measure
of unavoidable overlapping
and that some of the listed criteria may
differ only as to nuance. The criteria are the following:
the
love, affection and other emotional ties which exist between parent
and child and the parent's compatibility with the child;
(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 ternperament 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 wellbeing 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
(I)
...
(l)
any
other factor which is relevant to the particular case with...
"
[23]
Having carefully considered the reports of the family advocate and
the man's supplementary affidavit, I am
unable to find that one
parent is better able to promote and ensure the physical, moral,
emotional and spiritual welfare of the
minor children, than the
other. On the aforementioned, the scales are evenly balanced. In
fact, apart from the acrimony between
them, the reports evince that
they have the following in common; each are gainfully employed and
each reside in adequate dwellings.
As evinced by respective reports,
they are not perfect parents. Both have been found wanting in their
parenting skills. They each
have experienced their fair share of
trials and tribulations; the applicant's alcohol abuse and the
woman's depression and suicide
attempts being cases in point. What
tips the scales in the woman's favour however is the following;
during the divorce proceedings,
the court aided by the Family
Advocate's report awarded primary care and residence to the woman.
Until the man approached the court
for the
rule nisi,
he had
not once complained about the woman's unsuitability to care for the
minor children. Despite the woman's shortcomings, I could
find
nothing suggesting that the woman had neglected the minor children or
acted in any manner that jeopardized their care. Furthermore
unlike
the man's mere say so on stopping his alcohol abuse, the woman has
been treated by a clinical psychologist and a psychiatrist.
The
latter certifying, in a reported dated 19 September 2022, that the
woman's depression is in remission since 2021 and that there
has been
no reports of any suicidal attempts since.
[24]
It
is evident from the reports that the minor children love their
parents and both parents reciprocate the love. The minor children
are
however confused and conflicted, they feel the need to appease the
parents, depending on which parent at any given point in
their lives
is the primary care-giver.
[25]
It
is manifest that the man and the woman, if not for themselves, then
for the sake of their minor children, have a lot to work
on, singly
and collectively. At the tender ages of 7 and 6 both are still in
their formative years, and deserve a lot more than
they have been
getting from their parents. The current acrimony between the parents
and tugging at their offspring does not bode
well for the wellbeing
of the minor children. This needs to stop!
[26]
The
minor children have suffered enough. At their tender ages they have
had to experience and perhaps even witness the root cause
of the
breakdown of their family unit. They have had to move between
schools, homes, bid family, friends and
familiar
environments
goodbye,
all
too
often.
At
the
risk
of
repetition,
this needs to stop! For
them to enjoy their childhood and someday be well-rounded adults,
they need, as far as possible, to live
in a safe and nurturing
environment, they need and indeed deserve stability in their young
and impressionable lives.
[27]
This court can unfortunately not itself isolate children from the
shocks and perils of harsh family and neighbourhood
environments.
What it can do, is to endeavor to insulate them against such by
creating conditions to protect them and to maximize
opportunities for
them to lead productive and happy lives. This is what the court
sought to achieve with its order dated 9th March
2023.
[28]
Alive to this and in an endeavor to create as little disruption as
possible to the minor children, towards
the tail-end of the 9 March
2023 proceedings, I broached with counsel for the woman the subject
of when and how it would be opportune
to place the minor children in
the care of their mother, if the court were so inclined. Adv. Van der
Sandt, drew the court's attention
to the impending March school
recess and implored the court, if it were so inclined, to utilize
that period. This she submitted
would cause little to no disruption
to their schooling and further submitted that, should the order
restore their mother's primary
care-giver status, plans were afoot to
have them readmitted at their former schools in Bloemfontein
[29]
Having found no cogent reasons to reject the recommendations of the
Family Advocate, I accordingly granted the order
in the terms I did.
I was furthermore satisfied that in the present matter the court was
not dealing with children in need of care
and protection as envisaged
in the
Children's Act. What
was vital in this case was for the
parents of the minor children to undergo a paradigm shift with
regards to their priorities and
parenting skills. I am satisfied that
the interests of the minor children are best be served by returning
them to the care of and
primary residency with the woman.
[30]
Accordingly, as this is a final order, the maintenance order that was
suspended by the
rule nisi
is hereby revived.
[31]
The Office of the Family Advocate is ordered to report and or make
further recommendations to this court
on the progress of the
implementation of the court's order on the 25 May 2023.
NG
GUSHA, AJ
On
behalf of the applicant
Adv.
W.A Van Aswegen
Instructed
by:
McIntyre
Van Der Post
BLOEMFONTEIN
On
behalf of the respondent:
Adv.
A Sander
Instructed
by:
Eugene
Attorneys
BLOEMFONTEIN
[1]
M v The State and Centre for Child Law
[2007] ZACC 18
;
2008 (3) SA 232
(CC).
[2]
An internet based social media messaging application.
[3]
Section 2
(1) and (2) of Act 24 of 1987.
[4]
Ibid Section 4.
[5]
Swahili proverb: when two elephants fight, the grass suffers.
[6]
Section 28 of the Constitution of the Republic of South Africa, 108
of 1996, see also
section 9
of the
Children's Act, Act
38 of 2005
which provides that in all matters concerning the care, protection
and well being of a child the standard that
the child's best
interest is of paramount importance, must be applied.
[7]
1994 (3) SA 201
(C) at 205 A-
F.