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[2023] ZAFSHC 479
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S.B v C.B (6540/2023) [2023] ZAFSHC 479 (11 December 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
number: 6540/2023
In
the matter between:
S[…]
B[…]
Applicant
and
C[…]
B[…]
Respondent
CORAM:
LOUBSER, J
HEARD
ON:
6 DECEMBER 2023
JUDGMENT
BY:
LOUBSER, J
DELIVERED
ON:
11 DECEMBER 2023
[1]
This application concerns the care and primary residency of two very
young girls,
A[…] aged 4, and H[…] aged 2 years. They
are the children of the applicant and the respondent, who were
divorced
in this Division on 26 October this year. In terms of
a Deed of Settlement between the parties, made an order of court on
the day of the divorce, the primary care and the permanent residency
of the children were awarded to the respondent. The applicant
was
awarded contact rights,
inter alia
the right to take the
children with him on alternative weekends.
[2]
The applicant approached this court on Sunday 3 December 2023 with an
urgent application
concerning the children. The court postponed the
application to 6 December to allow for the filing of further
affidavits.
[3]
The applicant moves for the following relief: That the order of the
Children’s
Court dated 14 November 2022 be set aside,
that a private social worker be ordered to conduct an investigation
pertaining to the exercise of care and contact by the parties, and
that a
rule nisi
be issued, returnable on 29 February 2024,
calling on the respondent to show cause why the rights of primary
care and residence
of the children shall not be awarded to the
applicant with contact rights to the respondent, to be exercised
under the supervision
of a social worker. Further to this, that the
applicant’s obligation to pay maintenance in respect of the
children per the
Deed of Settlement, be suspended pending the final
determination of the application, and whilst the children are in the
primary
care of the applicant. Finally, that pending the
investigation by the private social worker, the applicant be awarded
the primary
care and residence of the children with immediate effect.
[4]
It appears from the application papers that the applicant approached
the Children’s
Court on 10 November 2023 on an urgent basis for
a declaratory order that the children are in need of care and
protection in terms
of section 151 of the Children’s Act 38 of
2005, and that they be placed in the temporary safe care of the
applicant. Further,
that a private social worker be appointed to
forensically assess A[...] and to submit a report to the court. In
his founding papers
in the Children’s Court, the applicant said
that in recent weeks, he noticed that A[...] did not want to go back
to the respondent.
He did request a forensic assessment from the
respondent to establish the reasons for this reluctance to go to the
respondent,
but the respondent failed to take any steps.
[5]
It further appears that on the day of the Children’s Court
proceedings, the
presiding magistrate ruled that a social worker
report must first be obtained, and the court then ordered a
departmental social
worker on 14 November 2023 to do the
investigation. The application was then postponed to 12 January 2024
by the court.
[6]
In the present application, the applicant says that the respondent
eventually agreed
to an assessment of A[...] on 14 November 2023, on
condition that it is done by a certain private social worker. Before
that could
take place, however, A[...] disclosed to the applicant and
his present partner on 18 November 2023, that one C[…] had
touched
her private parts. C[…] is a 20-year-old family member
of the respondent, who had moved in with the respondent and the
children
after the parties had separated. This happened with the
blessing of the applicant.
[7]
The following day, 19 November 2023, the applicant then opened
charges against C[…]
at the police station, and he notified
the respondent of the events. The applicant mentions that the
respondent then again agreed
to a forensic assessment, and he further
mentions that C[...] no longer resides at the respondent’s
house. He also mentions
that a forensic assessment will now be
conducted by a social worker of the SAPS, and that he was told by the
police that no other
assessment will be allowed.
[8]
In her answering papers the respondent says that she was not aware of
any sexual abuse
in her house, that is, until 19 November 2023. She
claims that she was never reluctant for an assessment, and she points
out that
she had already on 31 October 2023 signed a form consenting
to play-therapy for A[...]. She further says that she is best suited
to care for the girls, and she denies that the children are
neglected. They are always provided for, she says. If the need
arises,
her mother here in Bloemfontein can also assist at home.
[9]
Now it is clear that there is presently not a good relationship
between the respondent
and A[...]. According to the applicant,
A[...]’s reluctance to return to the respondent became severe
since August/September
this year. Elsewhere he says that A[...] has
undergone a complete personality change since August 2023. We do not
know what the
reasons are, but it could probably be attributed to the
alleged sexual abuse. For this the respondent cannot be blamed,
because
according to her, she simply was not aware of the abuse. When
she became aware, she immediately took steps to chase C[...] out of
the house.
[10]
Despite the applicant’s accusations that the unsatisfactory
relationship between the respondent
and A[...] is due to the
respondent’s neglect of the child, the fact remains that the
applicant was satisfied to sign a deed
of settlement only a month and
a half ago that the primary care and residence of the children be
awarded to the respondent. It
is clear that the continued reluctance
of A[...] to go back to the respondent, then caused the applicant to
seek relief from the
Children’s Court a mere two weeks later.
That Court ordered an investigation to be done by a social worker,
and her report
is still pending.
[11]
This court is presently in no better position than the Children’s
Court to determine the
real reason for A[...]’s behavior,
because there is not yet a report by a social worker. The applicant
complains that the
social worker has so far only visited the
respondent’s house, and she has not even bothered to consult
with himself. His
misgivings in this respect is premature, because
the social worker has obviously time until 12 January 2024 to finish
her work
and submit a report.
[12]
The real question is whether the applicant has shown sufficient
grounds upon which this court
should interfere with the proceedings
in the Children's court at this point in time. We know that after
those proceedings were
instituted, it was revealed that A[...] was
allegedly abused sexually. The pending forensic assessment of A[...]
by the police
will hopefully shed more light on this aspect, but to
blame the respondent for this state of affairs, is in my view going
too far.
There is no evidence before me that the respondent had
known of the alleged abuse or that she could have prevented it. There
is
also not persuasive evidence before me on the facts that the
respondent had dragged her feet to have A[...] forensically assessed.
On the contrary, on 31 October 2023 she had already consented to
play-therapy with the child. In the premises, I come to the
conclusion
that no sufficient grounds have been shown for this court
to take the children away from their mother immediately and before
the
Children’s Court had occasion to decide the matter on the
basis of the social workers’ report. Meanwhile, nothing stands
in the way of any of the parties to also request a private social
worker to investigate and to submit a report. It is not necessary
for
this court to make an order to such effect.
[13]
It follows that the proceedings in the Children’s Court must be
allowed to run its course.
This court does not need to interfere with
that process at this stage. The Deed of Settlement must also remain
in place until the
Children’s Court has pronounced itself on
the matter.
[14]
In the premises, the urgent relief sought by the applicant cannot
succeed. As for costs, this
court cannot blame the applicant that he
felt the need to seek relief in the best interests of his children.
Because the children
are of such tender age, the respondent can also
not be blamed for opposing the application. In the premises, each
party should
pay their own costs.
[15]
The following order is made:
1.
The application for urgent relief is dismissed.
2.
There is no order as to costs.
P.J.
LOUBSER, J
On
behalf of the applicant:
Adv.
J Ferreira
Instructed
by:
Phatshoane
Henney Inc
Bloemfontein
On
behalf of the respondent:
Adv.
K Naidoo
Instructed
by:
JL
Jordaan Attorneys
Bloemfontein
/roosthuizen