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[2010] ZASCA 139
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S v J (695/10) [2010] ZASCA 139; [2011] 2 All SA 299 (SCA) ; 2011 (3) SA 126 (SCA) (19 November 2010)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no
: 695/2010
In the
matter between:
S
.................................................................................................................
Appellant
and
Mrs J
..............................................................................................
First
Respondent
Mr J
...........................................................................................
Second
Respondent
Neutral citation:
S v J
(695/10)
[2010] ZASCA
139
(19 November 2010)
Coram:
LEWIS, BOSIELO JJA and R PILLAY, BERTELSMANN and K PILLAY AJJA
Heard:
5 NOVEMBER 2010
Delivered 19 NOVEMBER 2010
Summary:
Parental rights and responsibilities under the
Children’s Act 38 of 2005: unmarried father’s
responsibilities and rights;
grandparents’ responsibilities and
rights; jurisdiction of high court to set aside or suspend operation
of another high court’s
order.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
High Court (Northern Cape) (Kgomo JP sitting
as court of first instance in three applications):
The following orders are made.
A
1 The appeal against the whole of the order of the Northern Cape High
Court made on 2 October 2009 succeeds, with costs.
2 That order is replaced with the following:
‘
(a) The first and second applicants’
application is dismissed.
(b) It is declared that the first respondent is the holder of full
parental responsibilities and rights in terms of s 18 of the
Children’s Act 38 of 2005.
(c) C shall reside permanently with the first respondent.
(d) The applicants may have contact with C on a regular basis, which
should be arranged with Mrs A J, the mother of Mrs A S, and
which
should take place at the home of Mrs A J or at a place agreed by Mrs
A J and the first applicant. All such arrangements should
be
discussed with the first respondent prior to contact taking place.
(e) In the event that the parties experience difficulty in arranging
contact they must first attempt to resolve this through a
mediator
rather than through court proceedings.’
B
1 The appeal against paragraphs 2, 3 and 4 of the order made by the
Northern Cape High Court on 30 October 2009 succeeds with costs.
2 The order is replaced with the following:
‘
The first and second applicants’
application is dismissed.’
C
1 The appeal against the order made by the Northern Cape High Court
on 21 May 2010 succeeds with costs.
2 The order is replaced with the following:
‘
The application is dismissed with costs.’
______________________________________________________________
JUDGMENT
______________________________________________________________
LEWIS JA (
BOSIELO JA AND R PILLAY, BERTELSMANN AND K PILLAY concurring)
[1] C S was born on 23 January 2006. Her father, Mr S, is the
appellant in this matter. Her mother, Ms R, died two months after
C’s
birth. She suffered from a congenital heart defect and was operated
upon on the same day that C was born in an attempt
to remedy the
defect. Regrettably she did not recover. S and R were not married at
the time of C’s birth. But they were living
together at the
time and intended to marry.
[2] The first respondent, Mrs J, was the mother of R, and thus the
maternal grandmother of C. She is married to the second respondent,
Mr J, but the latter was not R’s father. The parties have been
engaged, virtually since C’s birth, in a battle for
the custody
and guardianship of the child. (In terms of the Children’s Act
38 of 2005, parts of which came into operation
in 2007, and the
balance in 2010, the term ‘custody’ is replaced with the
obligation to care for a child, which is
included in ‘parental
responsibilities and rights’. I shall discuss the Act and its
implications later.)
[3] Numerous applications to court to have C live with them have been
made over the nearly five years of C’s life by the
respective
parties, with different results. These have been made both in the
Northern Cape High Court and in the Western Cape High
Court. This
appeal is against three orders made by the Northern Cape High Court,
all by Kgomo JP, with the leave of this court.
Each order will be
dealt with separately. Suffice it to say for the moment that Kgomo JP
ordered that care and guardianship of
C be awarded to the Js, but
that S be given rights of contact (access) – orders completely
at odds with all other orders
made by both the Northern Cape and
Western Cape High Courts in previous litigation.
[4] This court also asked Ms Ann Skelton, assisted by the Child Care
Centre, University of Pretoria, to act as curator ad litem
on behalf
of C, and to present argument on her behalf. We are indebted to her
and to the Child Care Centre for the extremely thorough
and helpful
report and argument presented.
[5] There are a number of issues that must be determined: the best
interests of C; the rights of unmarried fathers; whether the
Northern
Cape and Western Cape High Courts had concurrent jurisdiction at the
times their respective orders were made; and the
extent of
grandparents’ rights in respect of children. I shall deal,
first, however, with the history of the matter.
[6] As I have said, at the time of C’s birth S and Ms R were
living together in Paarl and had been for some 18 months prior
to her
birth. Although the Js dispute this, S alleged that he and Ms R
intended to marry after the birth of C and there was other
evidence
that this was so.
[7] Currently C lives with S and his wife, A, in Paarl. They married
in June 2007. She has a half-brother who was born about a
year before
this appeal. The Js live in Keimoes, on a farm. And C spent the first
couple of years after her birth living in Keimoes
with them. It is
common cause that Mrs J went to Paarl to be with Ms R when she gave
birth. It is also not disputed that S took
a month’s leave from
work to be with Ms R over the birth and thereafter. Before Ms R died
she took C to Keimoes to visit
her family. She fell gravely ill there
and returned to Paarl with her mother and C, but died in hospital.
[8] A few days later Mrs J took C back to Keimoes with her. S alleged
that this was done without his consent: he had left C with
Mrs J
while he went to do some errands and when he returned to his home C
and her things were gone. Mrs J, in various proceedings,
has alleged
that she took C with S’s permission. In the course of doing an
investigation a family advocate concluded that
S’s version was
more probable. This dispute has not been resolved, but in my view
nothing turns on it at this stage.
[9] Ms R was buried in Keimoes in April 2006. S was faced at the
funeral with papers for a hearing in the Children’s Court
(served in the company of police officers whose presence was arranged
by Mr J), the Js having asked for an investigation with a
view to
obtaining custody and guardianship of C. At the time the Child Care
Act 74 of 1983 was in operation, as was the Natural
Fathers of
Children Born out of Wedlock Act 86 of 1997. A hearing in the
Children’s Court commenced towards the end of April
2006. It
took until February 2008 to conclude, at which stage C was already
two, and had been living in Keimoes with the Js.
[10] Before the decision of the Children’s Court was made, S
brought an urgent application in the Northern Cape High Court
for a
declaratory order in terms of s 21 of the Children’s Act, by
then in force, confirming his full parental rights and
responsibilities (I shall deal with the section later) and affording
him access (now termed contact) to C. The application was
postponed.
[11] On 26 February 2008 the Children’s Court ordered that C be
placed in her father’s care, and reside with him, following
a
process of reunification that was to take place from February until
August of that year.
[12] But in August 2008 the Js brought an urgent application, heard
by Olivier J, asking for a suspension of the reunification
process;
parental rights and responsibilities in respect of C; and that S’s
rights be limited to reasonable contact. Olivier
J issued a rule nisi
and referred the matter back to the Children’s Court. S brought
a counter application a month later
for a declaratory order that he
held full parental rights and responsibilities and that he be given
contact with C pending the
finalization of the Js’ application.
[13] The rule nisi was extended on three occasions subsequently, in
September and October 2008. In November 2008 Majiedt J extended
it
again, until 30 January 2009, and made orders as to the appointment
of psychologists to facilitate contact between S and C.
He also
ordered that C spend one weekend a month with S in Paarl and one per
month in Keimoes. The order required reports by experts
to be filed
indicating the progress made in reuniting C with her father. That
order too was extended, once by Majiedt J and once
by Tlaletsi J in
February 2009.
[14] On 19 February 2009 the family advocate, Mr Andries Nel, filed
his report, stating that S had automatically acquired full
parental
rights and responsibilities by virtue of s 21 of the Children’s
Act, and recommending that C reside with her father,
subject to a
process of integration and to rights of contact being afforded to the
Js. At that stage C was three. The rule nisi
was extended yet again.
[15] On 27 February 2009 Lacock J in the Northern Cape High Court
made an agreement between the parties an order of court. It extended
the rule nisi and ordered the reintegration process in accordance
with the recommendation of Mr Nel. That was followed (on 6 March)
by
another order by agreement, extending the order of Lacock J for
another month and ordering contact between S and C in Paarl
in March.
That took place for some two weeks, and the rule nisi was extended by
Henriques AJ until 7 August 2009. In fact, C started
living in Paarl
with her father and stepmother without interruption from July 2009.
[16] Despite the recommendation of the family advocate and the orders
made by agreement, and despite the fact that C had settled
in Paarl –
of which more later – the Js applied to the Northern Cape High
Court in August 2009 for an order that the
question of parental
rights and responsibilities be referred to oral evidence. Kgomo JP
heard the application, but the request
for referral to oral evidence
was abandoned. On 2 October 2009 he ordered that ‘custody and
guardianship’ of C be awarded
to the Js; that they be awarded
full parental responsibilities in terms of s 18 of the Children’s
Act; that C live permanently
with the Js and that S be given the
‘right of reasonable access’ to C to be determined in
accordance with recommendations
from the parties’ respective
psychologists. If they reached agreement it would be made an order of
court on 20 October 2009.
This is the first order appealed against.
[17] A day after the order was made by Kgomo JP, S launched an urgent
application in the Western Cape High Court asking for a stay
of the
order pending the filing of an application for leave to appeal.
Bozalek J granted the order, effective until 9 October,
or until the
filing of the application for leave, whichever was the earlier. On 9
October S filed the application for leave to
appeal in the Northern
Cape High Court.
[18] On 19 October 2009 the Js filed an urgent application to enforce
the order of Kgomo JP, this despite the filing of the application
for
leave to appeal. In response S launched yet another urgent
application in the Western Cape High Court for a ‘variation’
of the order of Kgomo JP. Yekiso J granted a rule nisi with a return
date of 27 November 2009 and ordered that C should continue
to live
with S in the interim period.
[19] S also filed a supplementary affidavit in the Northern Cape High
Court, prior to the date when Kgomo JP was to hear whether
agreement
had been reached on contact between himself and C, explaining that he
had applied for leave to appeal. Kgomo JP, on 30
October, struck the
application for leave to appeal from the roll (despite the fact that
it had not yet been enrolled), citing
non-appearance by S as the
reason; ordered S to ‘deliver’ C to the Js within seven
days; and ordered the enforcement
of the order of 2 October. This is
the second order appealed against.
[20] An application for leave to appeal against the second order of
the judge president was filed on 2 November 2009. The Js immediately,
on 12 November, filed an application for an order holding S and his
attorney, Ms Odette Deysel, in contempt of court. On 21 May
2010
Kgomo JP found S in contempt of court (‘disobedience’ of
the orders of 2 October and 30 October 2009 and the order
of 25 March
2010) and ordered imprisonment of S for one month, suspended for ten
days on condition that he ‘delivers’
C to the Js. The
judge president also ordered each of S and Deysel to pay to the
applicants 50 per cent of the taxed costs of the
Js on the attorney
and client scale. This is the third order appealed against.
[21] However, prior to the third judgment and order being handed
down, Louw J in the Western Cape High Court heard the application
of
S for the confirmation of the rule nisi issued by Yekiso J earlier in
the year and handed down judgment on 5 March 2010. He
discharged the
rule nisi but ordered that, pending S’s appeal in the Northern
Cape High Court, the execution of the order
of Kgomo JP be stayed.
[22] On 9 June 2010 S applied for leave to appeal against the order
of Kgomo JP made on 21 May 2010 in the Northern Cape High Court.
Leave was refused on the basis that the application was brought only
to frustrate the ‘delivery’ of C to the Js and
that there
were no reasonable prospects of success on appeal. As I have said,
this court granted leave to appeal against the three
orders of Kgomo
JP in September 2010.
The legal framework
Unmarried fathers’ rights and responsibilities
[23] As I have indicated the law governing the rights of an unmarried
father changed during the course of the litigation. When
C was born
the Natural Fathers of Children Born out of Wedlock Act 86 of 1997
applied. It did not confer custody and guardianship
on an unmarried
father even on the death or incapacity of the mother. And in the
absence of a will directing otherwise grandparents
also did not have
these powers without an order of court.
[24] However, during the course of the disputes, the Children’s
Act 38 of 2005 came into operation, in part in 2007 and the
balance
in 2010. Section 21 of the Children’s Act, which came into
operation on 1 July 2007, is fundamental in this matter.
The relevant
part reads:
‘
21
Parental responsibilities and rights of unmarried fathers
(1)
The biological father of a child who does not have parental
responsibilities and rights in respect of the child in terms of
section 20, acquires full parental responsibilities and rights in
respect of the child-
if at the time of the child's
birth he is living with the mother in a permanent life-partnership;
. . .
Section 20 deals with the parental responsibilities and rights of
married fathers. And s 21(4) states that s 20 applies ‘regardless
of whether the child was born before or after the commencement of
this Act’.
[25] If, therefore, S and R had been living in a ‘permanent
life partnership’ at the time of C’s birth he would
automatically have acquired parental rights and responsibilities when
the section came into operation on 1 July 2007.
Grandparents’ rights and responsibilities
[26] Sections 23 and 24 of the Children’s
Act, which govern non-parental rights to care and guardianship
respectively, came
into operation on 1 April 2010. Section 23 allows
any person having an interest in the care, well-being or development
of a child
to apply to an appropriate court for rights of contact and
care, subject to the best interests of the child. Section 24 deals
with
the assignment of guardianship. Before that date grandparents
had no inherent rights or responsibilities. It was only a high court,
as the upper guardian of a child, that could confer access, custody
or guardianship on a grandparent. And of course that too would
be
done only if it were in the best interests of a child – an
assessment that would have been made having regard to the rights
of
the biological parents.
1
The first judgment and order: 2 October 2009
[27] Ms Anderson, for S, contends that in reaching the conclusion
that guardianship and care of C should be awarded to the Js,
Kgomo JP
made a number of factual errors. This is undoubtedly so. I mention
but a few. They included that S had ‘shacked
up’ with R
and that they were not in a ‘permanent love relationship’.
This was contrary to all the evidence.
They had lived together for at
least a year prior to C’s birth; they intended marrying
afterwards; S had taken a months’
leave from work to care for R
and the baby after her birth, and did in fact do so, together with
Mrs J.
[28] The permanence of the relationship, and the love that Ms R felt
for S, are demonstrated in a diary that R kept before she
gave birth,
in which she wrote to her unborn child saying that they both had to
‘hold on to life – so me, you and your
dad can be
together soon . . . . He loves us so much . . .‘. Although Ms
R’s sister alleged that Ms R had confided
to her before the
birth that Mrs J should look after the baby should Ms R die, there
was no evidence to support this and its seems
improbable in the light
of what was written in the diary, which was not contested.
[29] Kgomo JP found too that the Js had brought C up as their own
child ‘without any demur from any quarter’. In the
light
of the history of the litigation, and of the process of
reunification, described earlier, this conclusion has no foundation.
[30] Even more extraordinary is the judge president’s
conclusion that C should not be uprooted from the ‘secure,
familiar
and warm environment that she finds herself in’. In
fact, C was living with her father and stepmother in Paarl, in terms
of the court order granted in the Northern Cape High Court, and after
the process of reunification, when Kgomo JP made his order.
[31] Ms Anderson also contends that the judge president came to
incorrect legal conclusions. I have set out the principles relating
to care and guardianship above. By virtue of s 21 of the Children’s
Act, S, who was living in a permanent life-partnership
with R at the
time of C’s birth, acquired full parental responsibilities and
rights in respect of C before the Js themselves
applied for such
responsibilities and rights. At the time that they did so – in
August 2008 – the sections of the Act
that would have allowed
for them to acquire such rights and responsibilities (ss 23 and 24,
which permit a court to grant care,
contact and guardianship to an
interested person) were not in operation: they applied only from 1
April 2010. Of course, as I have
said, the high court would have had
jurisdiction, as the upper guardian of all children, to award such
rights to grandparents.
[32] But as S argues, his inherent right as a biological father had
to be taken into account, subject, obviously, to whether it
was in
C’s best interests. Note that s 7 of the Children’s Act
attempts a codification of what factors must be taken
into account in
determining what is in the best interest of a child. I shall not deal
with it since there is no dispute between
the various experts who
have reported on C’s best interests, to which I shall return.
But it is significant that section
9 of the Children’s Act, in
operation at the time when the first order was made, was also not
referred to nor applied by
Kgomo JP. It provides:
‘
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.’
Given the fact that reunification of C and S had taken place and that
it was known to have been successful at the time of the first
order,
it could not have been thought by any court that it was in her best
interest that she be moved from her family in Paarl
and taken to the
Js in Keimoes.
[33] Kgomo JP seemed to be oblivious of the law in this regard when
he ordered that the Js be awarded care and guardianship of
C, and
continued to ignore the legislation (and the child’s best
interests) in subsequent judgments as well. He also ignored
the
orders of the Northern Cape High Court, made by agreement, which
required the parties to follow an integration process, as
well as the
reports of psychologists that it had in fact run smoothly. The court
also seemed oblivious of the fact that S had already
acquired
parental responsibilities and rights in respect of C, by virtue of s
21 of the Children’s Act, and that it was in
effect depriving
him of those responsibilities and rights.
[34] The judge president’s finding that it would be in the best
interests of C that her care and guardianship be awarded
to the Js,
subject to S’s rights of ‘reasonable access’, was
thus not warranted. It was based on factual errors
and a
misunderstanding of the law. The appeal against it must succeed. I
shall deal with the order that should be made after considering
the
other orders made by Kgomo JP. First, however, it is necessary to
deal with the judgment and order of Louw J in the Western
Cape High
Court.
The judgment and order in the Western Cape High Court of 5 March
2010: Jurisdiction in matters concerning a child
[35] It will be recalled that after Kgomo JP handed down the order
discussed above, S sought an order that, pending the filing
of a
notice of appeal in the Northern Cape High Court, that order be
stayed. He also obtained an opinion from a psychologist, Dr
Bredenkamp, on the position then of C. She reported that C had
settled into the S family happily and recommended that she remain
with them in Paarl. (S has sought and been given leave to file an
additional report of Bredenkamp on C and the family, and I shall
deal
with it briefly, together with the findings and recommendations of
the curator ad litem in due course.) A rule nisi was issued
and then
extended to 10 February 2010.
[36] S’s application for confirmation of the
rule came before Louw J. He considered that the Western Cape High
Court did have
jurisdiction over C because she was resident in its
area of jurisdiction. But the judge also concluded, correctly in my
view, that
the court did not have the jurisdiction to set aside or
vary the order of another high court. Louw J nonetheless held that as
upper
guardian of minors within its jurisdiction, the Western Cape
High Court had the power to make any order necessary for the
protection
of a child. He buttressed this conclusion with reference
to s 28(2) of the Constitution which provides that ‘A child’s
best interests are of paramount importance in every matter concerning
the child’. As Ms Anderson argued, this was consonant
with the
decision of the full court in the Western Cape in
J
v J
,
2
by which Louw J was bound, that a court is not
only empowered, as upper guardian of children within its
jurisdiction, but also obliged
to deal with all facts relevant to the
best interests of a child.
[37] It was clear to Louw J that it was in C’s best interests
to continue living with her father in Paarl. That obliged the
court,
it considered, to order a stay of execution of the order of Kgomo JP
pending the final resolution of the case in the Northern
Cape High
Court. It so ordered. In my view the Western Cape High Court did have
the jurisdiction to make the order in respect of
C, who was resident
within its jurisdiction at the time. That order did not vary or set
aside the first order made by Kgomo JP:
it merely suspended its
execution pending the appeal noted by S.
[38] That said, I would caution against a practice of forum shopping
even in cases concerning disputes over parenting rights and
responsibilities. High courts should not in general be faced with
litigation requiring them in effect to set aside an order made
in
another jurisdiction. And as a rule, since one is entitled to assume
that any order has been made in the best interests of a
child, should
those interests change over time the court that made the initial
order should be approached for a variation. Much
of the difficulty
may now be resolved with the enactment of s 29 of the Children’s
Act, which came into operation only in
2010. It provides that an
application under ss 23 and 24 (for parental responsibilities and
rights by an interested party) may
be brought in a high court within
whose area of jurisdiction the child is ordinarily resident. Where
that does not assist, however,
reliance on formalism and a resort to
inflexible rules is to be discouraged, a matter to which I shall
revert when dealing with
the second judgment in the Northern Cape
High Court.
The second judgment and order in the Northern Cape High Court: 30
October 2009
[39] On 9 October 2009 S filed an application for leave to appeal
against the first order of 2 October. A week later the Js brought
an
urgent application seeking the immediate implementation of the first
order. It was set down for hearing on 20 October. Mrs J,
in her
founding affidavit, asserted that S had applied for leave to appeal
only in order to circumvent the order of Kgomo JP. In
response,
Deysel, on the instructions of S, explained why leave was being
sought, and annexed the application that had first served
before
Bozalek J in the Western Cape High Court; a letter confirming that
the Js had refused to accept service of the application
and the first
report of Dr Bredenkamp. She also attached a letter to the Js’
attorney in which she had invited them to participate
in a further
assessment to be conducted by Dr Bredenkamp.
[40] But after S had obtained the first interim order from Yekiso J
in the Western Cape High Court – that C reside with him
in
Paarl – he decided not to continue with the opposition to the
urgent application: the costs of instructing an attorney
and counsel
in the Northern Cape were beyond his means. He filed a supplementary
affidavit to this effect. Deysel also filed another
affidavit
explaining that there would be no appearance for S on 20 October 2009
(the date determined by Kgomo JP in his first order
for any agreement
reached as to S’s contact with C to be made an order of court)
since the filing of the application for
leave to appeal had suspended
the operation of the order.
[41] Kgomo JP nonetheless struck the application for leave to appeal
from the roll with costs, and handed down a further judgment
and
order on 30 October. He felt constrained to do so by S’s
‘forum-shopping or forum-hopping with the singular motive
of
avoiding the consequences of the order of this Court . . .‘.
The judge president had clearly been offended by the attempt
by S to
act in his child’s best interest. And he reacted indignantly to
a statement by Deysel that one of the reasons for
abandoning the
opposition to the J’s’ urgent application for the
implementation of the first order was that she had
been advised that
it was unlikely that the urgent application would be heard over a
weekend, and that an advocate would not be
available. The judge
president said:
‘
This
statement is preposterous, far-fetched and ridiculous. A party cannot
create jurisdiction synthetically in another forum on
some outlandish
belief that counsel might not be available to argue his case.’
He accused her also of being ‘mischievous’. And he
continued:
‘
Ms
Deysel’s attitude and conduct is testimony to her utter
ignorance of the Rules of Court and her abject discourtesy to this
Court by agitating non-appearance.’
[42] The judge president ordered that S could apply for leave to
appeal only with a ‘substantive application being made and
on
good cause shown’. He ordered S to ‘deliver’ C to
the home of the Js, and to pay the costs of the application
on the
attorney and client scale. He also – astonishingly –
granted the Js ‘leave to bring an application for
Contempt of
Court . . . on the same papers suitably supplemented’.
[43] The judgment regrettably evinces a bias
against S. The intemperate language used, and the complete failure to
consider C’s
interests, are to be deplored. S does not rely on
bias as a ground on its own in seeking to overturn the order. But in
my view,
the argument that he stepped into the arena by inviting the
Js to bring an application for an order that S was in contempt of
court
is sound. The invitation is explicable only on the basis that
the judge president was more concerned about legal niceties than the
child’s best interests. This is precisely what the
Constitutional Court enjoined parties in disputes concerning children
not to do:
AD and DD v DW & others
(Centre for Child Law as Amicus Curiae; Department of Social
Development as intervening Party)
.
3
The court endorsed the view of the minority in
this court that the interests of children should not be held to
ransom for the sake
of legal niceties.
4
As Sachs J said, in endorsing the approach of the
minority, a child’s best interests ‘should not be
mechanically sacrificed
on the altar of jurisdictional formalism’.
5
[44] The judge president erred also in not
alluding to Dr Bredenkamp’s first report which had been placed
before him. Whatever
C’s best interests were when she lived
with the Js, they had to be reconsidered after she had gone to live
with S pursuant
to the reintegration process. As Hurt J stated in
P
v P
:
6
‘
I am
bound, in considering what is in the best interests of G, to take
everything into account, which has happened in the past,
even after
the close of pleadings and in fact right up to today. Furthermore, I
am bound to take into account the possibility of
what might happen in
the future if I make any specific order.’
See also
J v J
.
7
[45] The appeal against this judgment and order must also succeed.
The conclusions reached by Kgomo JP have no basis in fact or
in law;
evince bias on his part; and fail to consider at all the only real
issue: what was in C’s best interests. The order
that S pay
costs on the attorney client scale was completely without
justification: he had acted in what he considered was his
child’s
interest. S filed an application for leave to appeal against this
order on 6 November 2009.
The third judgment and order of the Northern Cape High Court: 21
May 2010
[46] On 10 November the Js accepted the invitation of Kgomo JP to
apply for an order that S be found guilty of contempt of court.
They
added Deysel in as a respondent for good measure. By the time it was
heard Louw J in the Western Cape High Court had ordered
that C remain
with her father in the Western Cape pending the appeal against the
first order.
[47] Kgomo JP considered the conclusion of Louw J, that he had
jurisdiction to determine where C should reside pending the appeal,
to be incorrect. It was the judge president’s view that once he
had made the first order he was functus officio: the custody
issue,
he said, was not pending. It had been decided. That the judge
president had struck the application for leave to appeal from
the
roll because of S’s non-appearance (the fact that it had not
been set down apparently did not occur to him) seemed to
be of no
consequence. Nor did the fact that C was resident in Paarl when the
first order was made – and that the Western
Cape High Court had
jurisdiction as the upper guardian – feature in his judgment.
And of course the judge president did not
appreciate the fact that in
making the first order he was depriving S of his parental rights and
responsibilities.
[48] Nonetheless Kgomo JP found that S was in contempt of his various
orders: ‘guilty of disobedience’. Although citing
the
principle that a breach of an order must be deliberate and mala fide
in order to constitute contempt of court, Kgomo JP did
not in fact
apply it. S was clearly acting bona fide, in accordance with an order
of the Western Cape High Court and on legal advice.
He did not,
however, find Deysel guilty of contempt of court. But the order that
S and Deysel pay the costs of the application
(the latter de bonis
propriis) on the attorney client scale was without any justification.
Indeed, Mr Schreuder for the Js conceded
that the orders were
ill-founded. The appeal against the third order must also succeed.
The best interests of C
[49] Ultimately this case is about C’s best interests. They
have not been served thus far by the Northern Cape High Court.
It is
clear now from the extensive reports of Dr Bredenkamp and Ms Skelton
that C is best off living with her father and stepmother,
A. She has
settled comfortably in her home, with her younger half-brother, and
has developed a very strong bond with A and her
half-brother. She has
also developed a warm and loving relationship with her paternal
grandparents and A’s parents.
[50] Dr Bredenkamp has conducted extensive psychological tests all of
which show C to be a happy child, apparently unscathed by
the legal
disputes over her. Ms Skelton has interviewed many people associated
with C, and made recommendations about contact with
the Js. S is
quite willing to allow them contact in the circumstances recommended
by Ms Skelton, which I shall make part of the
order. C herself
indicated that she wished to live with the S family and did not want
to go back to Keimoes, although she did want
to see the Js in Paarl.
[51] It should be mentioned that Ms Skelton formed the view that the
Js were more concerned about their interests than those of
C. Mr J
(who, it will be recalled is not in fact C’s grandfather) has
firm religious views on the importance of C living
with them. And Mrs
J believes (contrary to the evidence in R’s diary) that R
wanted C to live with her in the event of her
death. None of this is
of importance since it is not in the child’s interest to live
with the Js.
[52] I referred earlier to grandparents’
rights and responsibilities in respect of their grandchildren, and to
Townsend-Turner v Morrow
in
which Knoll J referred to recent research on the important role that
grandparents may play in the lives of their grandchildren.
That role
is recognized in this matter and discussed by Ms Skelton. But as she
points out, C has formed a bond with her paternal
grandparents and
with the parents of A. Indeed, she recommends that contact between C
and the Js be facilitated through A’s
mother, Mrs A J, and Ms
Anderson agrees that this should be the case.
[53] Mr Schreuder for the Js did not attempt to argue that it was in
C’s best interest to live with the J’s. He accepted
the
soundness of the Bredenkamp and Skelton recommendations. He did,
however, submit that the Js should not be ordered to pay the
costs of
the appeal. They had opposed it in the genuine belief that C was best
off living with them. I do not accept the argument.
In the face of
all evidence to the contrary they have refused to accept that C is
best off living with her father, stepmother and
half-brother. S has
had to go to extraordinary lengths to exercise his rights and to
protect his child’s interests. I see
no reason to deprive him
of the costs of the appeal.
[54] I record too that the litigation has not been
in any of the parties’ interests. Clearly, after Ms R’s
death in
particular, emotions ran high. All wanted to keep C with
them. But had the Js not ambushed S at the funeral with papers in
respect
of proceedings in the Children’s Court, and had all
concerned attempted to talk about her genuine best interests, they
would
not have spent nearly five years embroiled in a dispute about
her residence. This was not only at great emotional cost to all, but
also at great financial cost which none of them could really afford.
Fortunately C’s interests have been served by Deysel
who has
acted pro bono. I endorse the views expressed by Brassey AJ in
MB
v NB
8
that mediation in family matters is a useful way
of avoiding protracted and expensive legal battles, and that
litigation should
not necessarily be a first resort. Legal
practitioners should heed s 6(4) of the Children’s Act which
provides that in matters
concerning children an approach ‘conducive
to conciliation and problem solving should be followed and a
confrontational approach
should be avoided’.
[55] The following orders are made.
A
1 The appeal against the whole of the order of the Northern Cape High
Court made on 2 October 2009 succeeds, with costs.
2 That order is replaced with the following:
‘
(a) The first and second applicants’
application is dismissed.
(b) It is declared that the first respondent is the holder of full
parental responsibilities and rights in terms of s 18 of the
Children’s Act 38 of 2005.
(c) C shall reside permanently with the first respondent.
(d) The applicants may have contact with C on a regular basis, which
should be arranged with Mrs A J, the mother of Mrs A S, and
which
should take place at the home of Mrs A J or at a place agreed by Mrs
A J and the first applicant. All such arrangements should
be
discussed with the first respondent prior to contact taking place.
(e) In the event that the parties experience difficulty in arranging
contact they must first attempt to resolve this through a
mediator
rather than through court proceedings.’
B
1 The appeal against paragraphs 2, 3 and 4 of the order made by the
Northern Cape High Court on 30 October 2009 succeeds with costs.
2 The order is replaced with the following:
‘
The first and second applicants’
application is dismissed.’
C
1 The appeal against the order made by the Northern Cape High Court
on 21 May 2010 succeeds with costs.
2 The order is replaced with the following:
‘
The application is dismissed with costs.’
_____________
C H Lewis
Judge of Appeal
APPEARANCES
APPELLANTS:
J S Anderson
Instructed
by Haupt & van Zyl
Paarl
Law
Clinic, University of the Free State
Bloemfontein
RESPONDENTS:
J J Schreuder
Instructed
by Louw Kotzè & van Zyl
Upington
Rosendorff Reitz Barry
Bloemfontein
CURATOR AD
LITEM: A Skelton
Assisted
by the Childcare Centre, University of Pretoria
1
See
in this regard
Townsend-Turner v Morrow
2004 (2) SA 32
(C) at 42ff. The case dealt of
course with the position before the Children’s Act came into
operation. It was followed
in
Kleingeld
v Heunis & another
2007 (5) SA 559
(T) paras 6-10.
2
2008
(6) SA 30
(C) para 20.
3
[2007] ZACC 27
;
2008
(3) SA 183
(CC) para 30.
4
De
Gree v Webb
2007 (5) SCA 184 para 99.
5
Para
30.
6
2002
(6) SA 105
(N) at 110C-D.
7
Above
para 20.
8
2010
(3) SA 220
(GSJ) paras 52 to 59.