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[2023] ZAGPJHC 1174
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J.P.P v M.G (2023-054537) [2023] ZAGPJHC 1174 (17 October 2023)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE NO:
2023-054537
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
17/10/23
In the matter between:
J.P.P
Applicant
And
M.G
Respondent
J U D G M E N T
CORAM: LIEBENBERG AJ:
[1] The parties, who were
never married, are the biological parents of a girl, K[…], who
recently turn nine years old.
By all accounts, despite the
parties having separated in about May 2018, they have managed to
navigate their co-parenting responsibilities.
To this end, they
annually agreed to schedules dictating the periods K spends with the
applicant. The applicant’s had
contact with K from
a very young age, spending alternate weekends and alternate Thursday
nights with him. Half of every
school vacation were spent with
the applicant.
[2] During 2020, the
applicant entered into a relationship with Ms P[…] W[…].
According to the respondent sometime
during 2020, Ms PW subjected K
to inappropriate behaviour, including putting glue in K’s hair,
cutting K’s hair without
the respondent’s knowledge or
consent, pulling a blanket over K’s face and smothering her,
picking K up and dropping
her on purpose, and locking K in a cupboard
under the stairs in the applicant’s home.
[3] Despite the
applicant’s denial of this incidents, the respondent prevented
contact between the applicant and K.
After the relationship
between him and Ms PW terminated in July 2020, contact resumed as
agreed. Again, the parties agreed to schedules
and K spent regular
overnight contact with the applicant.
[4] The trigger to the
present litigation stems from the applicant’s failure to
immediately inform the respondent when he
and Ms PW rekindled their
relationship in December 2022. In fact, he only advised the
respondent of the renewed relationship
in early May 2023. The
respondent’s reaction was swift and punitive: she
insisted that the applicant may only
have contact with K under her
supervision and only for a few hours at a time.
[5] It is not the
respondent’s case that the applicant himself is a threat to K’s
wellbeing. She also does not
allege that Ms PW subjected K to
any mishandling or abuse during the period of the rekindled
relationship with the applicant.
The respondent contends that
while the applicant is involved with Ms PW, his contact with K must
be limited under supervision as
she “cannot expose [K] to any
form [of] abuse and lies of the Applicant about [Ms PW]”.
[6] The applicant is
emphatic that his rekindled relationship with Ms PW has once again
terminated, which the respondent does not
and cannot gainsay.
That being so, there is no reason for the applicant’s contact
rights to be curtailed.
[7] I cannot, on the
affidavits before me, find that Ms PW is guilty of the acts she is
accused of having committed. Whether
the accusations are the
products of an active imagination of a little girl or of a
misunderstood story, do not concern me.
What does concern me is
the well-being of a young child who is entitled to a close, loving
and supporting relationship with each
of her parents.
[8] On a conspectus of
the evidence, I do not believe a full forensic investigation of the
parties and K will serve any purpose.
By all accounts, the
parties have been able to fulfil their respective parental roles,
rights and responsibilities admirably.
Rather than an intrusive
investigation, the parties should engage in mediation to resolve any
outstanding or new issues that may
arise in the years ahead. A
consensus-based resolution of disputes is far more conducive to the
interests of the parties
and K.
[9] During argument, I
enquired from counsel for both parties how the impasse can and should
be addressed. I am most grateful
for their assistance and their
wise counsel to their respective clients. The order I grant
must not be taken to constitute
a finding that Ms PW had in fact
perpetrated any abuse or inappropriate behaviour towards K. The order
seeks to pave the way for
the resumption of a peaceful co-parenting
relationship between the parties, with K’s best interests being
front of mind.
[10] In the result, I
make an order in the following terms:
[10.1]
The
applicant and the respondent shall remain co-holders of full parental
responsibilities and rights in respect of K[…]
P. , as set out
in section 18 of the Children’s Act 38 of 2005 (“the
Act”).
[10.2]
K’s
primary residence shall vest with the respondent, subject to the
applicant’s parental responsibilities and rights
of contact
which shall be subject to K’s reasonable scholastic, religious,
extra mural and social activities, and shall include
but not be
limited to:
[10.2.1]
During
school term’:
[10.2.1.1]
The
applicant shall be entitled to have K within on alternate weekends
from Friday afternoon to Monday morning.
[10.2.1.2]
Every
alternate Thursdays.
[10.2.2]
Half
of every long and short school holidays.
[10.2.3]
In
addition, the applicant shall be entitled to reasonable daily
telephonic contact, which include contact via FaceTime, WhatsApp,
and
voice notes.
[10.2.4]
If
K has school, extra mural, religious or social activities falling
during the applicant’s periods of contact, he shall ensure
that
K attends these activities.
[10.2.5]
The
applicant shall take all necessary steps to ensure that, whilst in
his care, K does not have contact with P[…] W[…].
[10.3]
The Office of the Family Advocate is
requested to mediate a parenting plan between the parties, and in the
event that mediation
fails, to conduct an investigation into the best
interests of K and furnish a report and recommendations to the
parties and the
Court.
[10.4]
There shall be no order as to costs.
SARITA
LIEBENBERG
ACTING JUDGE OF THE
HIGH COURT
GAUTENG DIVISION,
JOHANNESBURG
Heard on: 11 October 2023
Delivered on: 17 October
2023
For
the applicant:
Adv
E Dreyer, instructed by MJ Hood & Associates
For
the respondent:
Adv
T Khaba, instructed by Chris Janeke Attorneys