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[2023] ZAFSHC 115
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L.P and Another v C.M.P (4813/2021) [2023] ZAFSHC 115 (20 April 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4813/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
L[....]
P[....]1
First
Applicant
R[....]
W[....] P[....]2
Second
Applicant
And
C[....]
M[....] P[....]
Respondent
HEARD
ON:
01 DECEMBER
2022
JUDGMENT
BY:
DANISO,
J
DELIVERED
ON:
20
APRIL 2023
[1]
In this opposed application, Part B, the
applicants
seek assignment of contact,
care
and guardianship
rights
in respect of the minor child “A[....]” in terms of
section 23 and 24 of the Children’s Act (“The
Act”).
[1]
[2] The
respondent is A[....]’s biological mother and she is also the
primary care-giver.
[3]
The applicants are married to each other. They are not related to
A[....] or the respondent. They approach
this court on the basis that
they are A[....]’s care-givers pursuant to a written
parental
rights and responsibilities
agreement
concluded by the parties on 17 June 2020 (the agreement)
[2]
and a subsequent oral agreement concluded in April 2021 which
respectively granted the applicants contact and care rights in
respect
of A[....].
[4]
The allegations are that the respondent has reneged on the terms of
agreement by curtailing the applicants’
contact rights and it
is in that regard the applicants sought and obtained an order on an
urgent basis (Part A) on 28 October 2021
on the following terms:
“
1.
That
part A of this application be enrolled
and heard as an urgent application in terms of Rule 6(12). That the
normal Rules pertaining
to time and service be dispensed with and
that the applicants’ deviation from the normal Rules pertaining
to time and service
be condoned;
2.
That the parental rights and
responsibilities in respect of the minor child pertaining to contact
as set out in section 18(2)(b)
of the Children’s Act 38 of 2005
be awarded to the first and second applicants in terms of section 23
of the Children’s
Act 38 of 2005 pending the finalization of
part A of this application and that such rights be exercised in the
following manner:
2.1.
The right to take the minor child
with them on alternative weekends. A weekend shall be deemed to
commence on Friday at 15h00 and
terminate on Sunday at 17h00,
2.2.
Telephonic or WhatsApp video call
contact between 16h00 and 18h00 on Wednesdays, Fridays and Sundays.
2.3.
That the Social Worker, Esti Smit,
be appointed with immediate effect to conduct weekly visits to the
minor child and compile a
report on the best interest of the minor
child with specific reference to care and contact of said child with
the applicants and
the biological mother and to submit the report to
the Court, the parties to this litigation and the Office of the
Family Advocate
on or before the 1
st
of February 2022.
3.
The Applicants to pay for the
services of the Social Worker, Esti Smit.
4.
The Office of the Family Advocate is
ordered to conduct an investigation to ascertain what would be in the
best interest of the
minor child with specific reference to her care
and contact with the applicants and her biological mother.
5.
Leave is granted to the applicants,
the respondent and the Office of the Family Advocate to approach the
Court on the same papers,
duly amplified, depending on the outcome of
the reports of the Social Worker and the Office of the Family
Advocate, to move for
one or more prayers in part B of the
application or any other relief that would serve the best interest of
the minor child.
6.
No order is made as to costs
.”
[5]
In the report from the family advocate, Astrid Davis incorporating
the report of the family counsellor, Ms
E. van der Westhuizen was
compiled on 30 November 2022 pursuant to an enquiry attended by the
parties and the minor child it is
contended that the relationship
between the plaintiff and A[....] should be viewed as that which
grandparents enjoy with their
grandparents enjoy with their
grandchildren thereof continue should continue on the basis that the
respondent retains her rights
as a primary care-giver and the
applicants are awarded permanent care and contact rights defined as
follows:
“
10.3.1.
Alternate weekend contact from a Friday to the Sunday.
10.3.2. One
short school holiday per year and long school holidays to be shared
equally between the parties, with contact
on Christmas, New Year,
Easter and other Public Holidays rotating between the parties
annually. Contact during school holidays
may not exceed (07) nights
consecutive sleepover contact.
103.3.
Contact with the child on her birthday as well as the respective
birthdays of the Applicants.
10.4.
A parenting/family co-ordinator to be appointed to assist the parties
with exercising of care and contact
rights and drafting of a
structured and detailed parenting plan. The parties to assist each
other with the costs of such parenting/family
coordinator. The
parenting /family coordinator to assist the parties with the
extension of contact rights and the amendment of
the agreed parenting
plan.”
[6]
The report from the social worker, Ms Estie Smit was procured on 26
January 2022. Ms Smit conducted several
weekly home visits to the
respondent’s residence for the purpose of investigating the
living conditions of the respondent’s
family including A[....].
Her observations are that, the respondent lived in a ….home
and the allegations alcohol abuse
and found that the and found it to
be modes and…the respondent is a stay at home Mom, looks after
A[....] and her sibling
born after A[....] while the respondent’s
partner is gainfully employed in his own business earns about
R52 000.00.
they are not destitute or rowdy.
[7]
Ms Smith could not find any evidence of alcohol abuse despite
interviewing iallegations of alcohol abuse and
found no evidence even
after interviewing a host number of people close to the respondent
her own mother, the domestic worker and
respondents mother .,
respondent’s friends Adriaan and Anneline Laubscher incuding
her colleagues at The Pub despite the
fact that the visists were
carried out unannounced unexpected
[8]
Ms Smith concludes that at the age of 20 months, A[....] is in the
developmental phase (7 -36 months) where
attachment with her
care-giver is of outmost importance it is therefore not in A[....]’s
best interest that she visits the
applicants every second weekend as
suggested by the family advocate. Sleepvers should not be allowed,
A[....] can visit the applicants
twice a month on a Saturday from 8am
to 5pm.
[9]
In the founding affidavit, allegations of child neglect enduring from
the time the respondent was still pregnant
with A[....] are averred.
The respondent is accused of having smoked cigarettes and imbibed on
alcohol whilst pregnant, after A[....]
was born, she also failed to
care and provide for A[....] financially, physically and emotionally.
[10]
The applicants state that the respondent’s financial situation
was so dire that on the very same day that she met
the second
applicant at a local social establishment (“The Pub”) she
had confided in him that she was considering aborting
A[....] due to
her financial circumstances and lack of support from A[....]’s
biological father who was apparently living
in Namibia. The second
applicant was able to persuade the respondent against aborting
A[....].
[11]
The applicants then offered to assist the respondent by providing
financial support with the result that the parties
established a very
close relationship. On 22 May 2020 the respondent went in labour
while at the applicant’s. Her life partner,
Mr Cilliers drove
her to hospital with the applicants’ vehicle and after giving
birth on 23 May 2020 the respondent returned
to the applicants’
residence with A[....] and her partner where they stayed for about
ten months and thereafter moved to
their own home during April 2021.
[12]
The applicants state that whilst the respondent and A[....] lived
with them, she (the respondent) abrogated her parenting
duties to the
first applicant. She would wake up early in the morning around 6am,
hand over A[....] to the fist applicant and retreat
to her room where
spent days drinking alcohol. It became the first applicant’s
duty not only to provide A[....] with necessities
such as clothing
and medical needs. She was also responsible for feeding and bathing
A[....].
[13]
At the time the respondent vacated the plaintiff’s residence
she agreed that the applicants could have contact
with A[....] on
every second weekend. By June 2021 the respondent’s attitude
towards the applicants had changed to an extent
that she reduced the
contact to one weekend per month. Later, she began to avoid the
applicants’ calls and messages and would
pick a fight about
petty matters ultimately the contact was seized altogether.
[14]
It is the applicant’s case that the respondent’s
unilateral termination of the applicants’ contact
rights is not
in the best interest of A[....] who has developed a very strong bond
with the first applicant, she was even referring
to the first
applicant as “Mamma.” The respondent’s actions have
also adversely affected A[....]. She has become
emotionally
withdrawn, she would be sad when she was picked up from the
respondents’ home, blossom into her normal happy
self when she
is at the applicants’ home and then become clingy when she is
returned to the respondent’s care.
[15]
The respondent’s failure to care for the needs of A[....] is
still evident. She would bring A[....] in the morning
unkempt, dirty
and without having been fed breakfast and based on these reasons, the
applicants contend that it would be in A[....]’s
best interest
that they are awarded full parental responsibilities pertaining to
the care, contact and guardianship over A[....]
as recommended by the
family advocate.
[16]
On the other side, the respondent is of the view that Ms Smit’s
recommendations should prevail under these circumstances.
It is
undisputed that the applicants provided the necessary shelter,
support and including financial care to A[....] from the time
the
respondent was pregnant with A[....].
[17]
The application is opposed on the grounds that the applicants’
actions herein are not intended to safeguard A[....]’s
best
interest but to take over the respondent’s role as A[....]’s
biological hence obtain care and control of A[....]
and this is
merely because they believe that they can do a better job of
parenting A[....] than the respondent.
[18]
The respondent denies having contemplated aborting A[....]. She
states that her partner was always willing to take over
the
responsibility and assist her in raising A[....].
[19]
Her acceptance of the applicants’ assistance is akin to that of
a new mother living with her parents in the first
weeks after giving
birth for comfort and support and nothing more.
[20]
Except for the fact that she had the usual parenting and financial
challenges there is nothing untoward about her child
rearing skills
and this is also evidenced by the fact that the applicants’
allegations of child neglect are not supported
by any evidence.
[21]
The respondent states that agreement was concluded on the applicant’s
request and for the sole purpose of registering
A[....] on their
medical aid it was certainly not intended for the
surrender
of the respondent’s
parental
rights
to the applicants. It is clear from clause 3 of the agreement that
the applicants undertook not to purport to be A[....]’s
biological however, soon after A[....] was born the first applicant
began to assume the respondent’s parental role by making
decision about when A[....] should bath, be changed or fed and what
kind of meals. She even took A[....] for medical attention
without
the knowledge and consent of the respondent and it is this behaviour
that prompted the respondent and her partner to vacate
the
applicants’ residence. Since then, the respondent’s
mother-daughter relationship with A[....] is thriving it should
not
be interfered with.
[22]
The respondent recognizes that the applicants and A[....] have a
special and close bond however that does not entitle
them to
co-parent with the respondent. The respondent also acknowledges that
it is not in A[....]’s best interest that contact
is terminated
abruptly it is in that regard that she contends that the contact
should continue as recommended by Ms Smit but it
should be phased
out.
[23]
Sections 23
[3]
and 24
[4]
of the Act provide a mechanism for a care-giver
[5]
to acquire rights for care and contact including guardianship in
respect of a child.
[24]
It is tested law
that
in matters of this kind, the interest of a child are of paramount
consideration
[6]
as well as: the
relationship between the relevant parties (the applicants and the
child concerned; the degree of commitment that
the applicants have
shown towards the child; the extent to which the applicants have
contributed towards expenses in connection
with the child’s
birth and maintenance and any other factor that should in the opinion
of the court, be taken into account.
[25]
On the facts germane to this matter, it is common cause that the
applicants enjoy a close bond with A[....]. It is also
it is
indisputable that the applicants have contributed vastly to A[....]’s
maintenance before and after she was born. The
only issue in dispute
is whether having regard to these established facts, it would be in
A[....]’s best interest that the
applicants are awarded full
parental responsibilities pertaining to the care, contact and
guardianship over A[....].
[26]
The reports filed by the family advocate and the social worker Ms
Smith present divergent views with regard to whether
it would be in
A[....]’s best interest that the applicants are granted the
relief they seek.
[27]
Having regard to the fact that on the family advocate’s own
submission the report was compiled based merely on an enquiry
that
was conducted at the family advocate’s offices. On the other
side, Ms Smith, conducted a thorough investigation of the
circumstances of the parties and the child which involved unannounced
weekly home visits to the respondent’s home not only
to
investigate the living conditions of the child but the allegations of
child neglect and alcohol abuse as alleged by the applicants.
[28]
A comprehensive professional report which is generated from an
investigation of the circumstances of the child within
its family and
environment setting enables the court make sound decisions based on
evidence based facts other than the information
obtained by merely
interviewing the parties. For these reasons, I cannot rely on the
family advocate’s insubstantial and
flimsy report. I am
satisfied that I can safely rely on Ms Smith’s report for the
determination of whether it would be in
A[....]’s best interest
that this matter is determined in favour of the applicant.
[29]
It is also important to highlight that in considering the best
interest of A[....], I also take into consideration the
conduct of
the applicants and how it shaped the proceedings. The applicants
launched an irate application on an urgent basis for
that matter.
AD
and DD and Others (Centre for Child Law as Amicus Curiae; Department
for Social Development as Intervening Party)
[2007]
ZACC 27
[2007] ZACC 27
; ;
2008
(3) SA 183
(CC)
para 30,
[30]
Serious allegations of child neglect and alcohol abuse are levelled
against the respondent in the founding affidavit.
The applicants went
further to seek expert reports which after all do not bear out these
disparaging allegations. I am thus inclined
to agree with the
respondent’s contentions that this application did not arise
from a genuine concern for A[....] but an
attempt to usurp her
parental responsibilities and rights. The applicants are not entitled
to the relief sought, the application
must fail.
[31]
Having regard to the facts of this matter,
I am in
agreement with the respondent’s contention that it would be in
A[....]’s best interest that the prevailing contact
rights
are
gradually phased out instead of an abrupt
termination thereof.
[32]
In the circumstances, I make the following order.
1.
The applicants’ application is dismissed.
2.
In terms of section 18 (2) read with section 19 of the Children’s
Act, 38 of 2005 the respondent
retains her full parental
responsibilities and rights in respect of the minor child
(“A[....]”).
3.
The applicants are granted temporary contact to the minor child to be
exercised as follows:
3.1.
Every alternate Saturday from 8h00 to 17h00.
3.2.
The applicants shall collect the minor child from the respondent’s
residence and return the minor
child to the respondent’s care
at her residence.
3.3.
The contact shall be phased out. A social worker alternatively, Ms
Estie Smith shall facilitate and
oversee the phasing our process.
4.
The applicants shall pay the costs of this application including the
costs for the services of
the social worker / Ms Estie Smith.
NS
DANISO, J
APPEARANCES:
Counsel
on behalf of the applicants: Adv.
R. van der Merwe
Instructed
by: Phatshoane
Henney
email:
ilze@phinc.co.za
BLOEMFONTEIN
Counsel
on behalf of the respondent: Adv.
A.P. Stone
Instructed
by:
Vermeulen
Attorneys
C/O Pieter Skein
Attorneys
emal:
ilze@skein.org.za
BLOEMFONTEIN
[1]
Act No, 38 of 2005.
[2]
Annexure
“FA5”
of the applicants’ founding affidavit.
[3]
23(1)(a), (b),2(a) to (e).
[4]
24(1), (2)(a) to (c).
[5]
In terms of s1 of the Act, a “Care-giver” means any
person other than a parent or guardian who factually cares for
a
child and includes a person who cares for a child with the implied
or express consent of a parent or guardian of the child.
[6]
Section 7(1) of the Act; s28 (2) of the Constitution Act No, 108 of
1996;
J
v J
2008
(6) SA 30
(C)
para 36
.