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[2022] ZAFSHC 284
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N.V v C.L (1575/2021) [2022] ZAFSHC 284 (21 October 2022)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 1575/2021
In
the matter between:
N[....]
V[....]
Applicant
and
C[....]
L[....]
Respondent
BEFORE:
CHESIWE,
J
HEARD
ON:
26
MAY 2022
DATE
RESERVED
:
7 JUNE 2022, this upon
receipt of the written supplementary heads of arguments on 3
& 7
June 2022 respectively.
DELIVERED
ON
:
This judgment was handed
electronically by circulation to the parties’
representatives
by email. The date and time for hand-down is deemed to be at 12h00 on
21 October 2022.
[1]
This application
involves the parental responsibilities and rights of the Applicant
(the father) and the Respondent (the mother)
over their two (2) year
old minor child HVV (“the minor child”), born on 11
February 2019.
[2]
The application came
on an urgent basis on 16 April 2021, in which the Applicant sought
relief in terms of Part A of the Notice
of Motion with a return date
of 20 May 2021. The application is opposed by the Respondent. The
Court granted Part A of the Notice
of Motion on 16 April 2021.
[3]
Between the parties,
various postponements were sought, as well as the report of the
Family Advocate not being finalised. With the
leave of the Court, the
parties proceeded to file supplementary papers after they had
received the report of the Family Advocate.
[4]
The matter was
eventually argued before this Court on 28 April 2022. Parties had to
file their supplementary heads of argument as
per the Court’s
directive on 1 June 2022 and 3 June 2022 respectively. Based on the
heads of argument, the matter was regarded
as postponed to 7 June
2022 upon receipt of the Applicant’s supplementary heads of
argument in reply and reserved on this
date.
BACKGROUND
[5]
The
Applicant and the Respondent were involved in a love relationship in
2018. During that year, they resided together, but they
were not
married. The Respondent fell pregnant and the minor child was born on
11 February 2019. The Applicant in terms of Section
21 of the
Children’s
Act
[1]
, hereafter to be referred to
as “the Children’s Act”.  has acquired
parental responsibilities and rights.
The relationship ended in 2019,
allegedly due to the Respondent stealing approximately sixty thousand
rand (R60 000,00) belonging
to the Applicant.
[6]
The Respondent moved
out of the communal home during the course of the year 2020.
Subsequent to the Respondent having moved out,
the parties structured
a parenting plan regarding contact rights of the Applicant. However,
despite the structured parenting plan
being in place, the Respondent
frustrated the Applicant’s contact rights.
[7]
The Applicant then
approached the Children’s Court for assistance. The court on 19
March 2021 ordered as follows:
“
2.1
The applicant shall enjoy contact to the child who shall visit
him every alternative week for full week at a time (sic)
ie 7 days
commencing Friday 15:00 to the following Sunday 15h00 whereupon the
child will be returned to the Respondent by the Applicant.
2.2
The visit will start this Friday, 19
th
March
2022 and the applicant shall fetch the Child from the respondent’s
custody and receive into his care for the duration
of the contact
ordered.
2.3
The parent not having physical custody of the child
during the child’s visit with the other parent for that

respective week shall be entitled to telephonic/video contact with
child between 18h00 – 19h00 daily.
2.4
The parent not having physical custody of the child
during the child’s visit with the other parent for that

respective week in the event of (sic) the any of the applicant,
respondent or child’s celebrating their birthday, (sic) fathers

or mother’s day as the case may be, shall be entitled to 4
hours contact for such occasion.
2.5
The applicant is responsible for the transfer of the child to and
from him for all visits.
Failure
to adhere to this order may result in contempt and or criminal
offence.”
[8]
The Applicant, after
the Children’s Court’s order was issued, proceeded to
exercise contact with the minor child, albeit
the frustrations of
contact caused by the Respondent.
[9]
During April 2021,
the Respondent relocated to Gqeberha, without informing the
Applicant. The Applicant continued to experience
frustrations of his
contact rights with the minor child. The Applicant approached this
Court and the Court order dated 16 April
2021 was issued. The
Respondent was ordered to return the minor child from Gqeberha to
Bethlehem.
[10]
I pause to mention
that the parties have had numerous applications since their
relationship ended. The applications include the
one which was before
the Children’s Court and the Maintenance Court in Bethlehem,
including approaching the Magistrate Court
in Qqeberha to enforce the
Bethlehem Court Order.  As well as an urgent application which
as earlier indicated, was brought
before this Court on 16 April 2021.
[11]
The Court in this
current matter, has to determine the minor child’s primary
residence and whether it is in the minor child’s
best interest
to be in a shared residence which is more or less eight hundred
kilometres (800 km) apart, this being the distance
between Gqeberha
and Bethlehem. The Applicant’s rights as an unmarried father
were already determined by the Children’s
Court in Bethlehem.
[12]
Adv. Van Rooyen,
Counsel on behalf of the Applicant during oral argument, submitted
that the report of the Family Advocate was biased
and misleading
against the Applicant and did not look into the living arrangements
of the Respondent. The Respondent is said to
be stayed in a garage
which seems to have been converted into a single room dwelling. It
was further submitted by Counsel that
blood test of the Respondent
did not dealing in detail on the drug allegation as liver function
tests and the hair follicle tests
were not done.
[13]
Counsel submitted
further that the Family Advocate did not deal with the six different
places that the Respondent has been moving
to nor did the Family
Advocate’s report deal with the allegations of the use of
anti-depressants, suicide threats, parental
alienation and the so
called body shots of the Respondent. Counsel in conclusion stated
that the Applicant is the more stable parent
and that it will be in
the best interest of the minor child that she be placed in the
primary care and residence of the Applicant.
[14]
Adv. Mohono, Counsel
on behalf of the Respondent submitted in oral argument that the
Family Advocate’s report is in the minor
child’s best
interest. The Applicant being a construction worker, will rely on his
parents to look after the minor child.
Counsel further submitted that
the minor child is emotionally attached to the Respondent. In as far
as the residence of the Respondent
is concerned, Counsel submitted
that the Respondent provided the minor child with what she can afford
and that there is nothing
wrong with the garage dwelling.
[15]
Counsel
further submitted that the Respondent went for the alcohol test and
went to Families South Africa (FAMSA)
[2]
for parenting skills as opposed to the Applicant who had his father
arrange parenting skills sessions. Further that the Applicant
does
not approach Court with clean hand as he misrepresented information
with regards to the minor child’s crèche
as well as the
allegations that Ms Burger was requested to be economical with the
truth in respect of her relationship with the
Applicant.
[16]
The Applicant’s
contention in the founding affidavit is that the Respondent has been
frustrating his contact rights with the
minor child since they
separated. Furthermore, the Respondent is unstable and has moved with
the minor child from one place of
residence to another five (5)
times. The Applicant raised an issue with the Respondent’s
constant use of anti-depressant
medication known as Cilift which the
Respondent took 20mg daily as well as the Respondent negligently
leaving the minor child at
a settlement area with her seventy-five
(75) year old father. The Respondent in her answering affidavit
denied these allegations.
[17]
The Respondent in
her answering affidavit contends that the Applicant is not being
honest with this Court as he told her that he
will abscond with the
minor child and that the Respondent would never see the minor child
again. The Respondent denied the allegations
against her, though she
admitted to being on the Cilift 20mg.
SECTION
21 OF THE CHILDREN’S ACT – UNMARRIED FATHER
[18]
The
Applicant as an unmarried father, had his parental responsibilities
and rights confirmed by the Children’s Court and this
was not
disputed. The Applicant met the requirements as envisaged in section
21 of the Children’s Act”. The Court based
its decision
on the report of the Family Advocate indicating that the Applicant
met the requirements of section 21(4).
[3]
Therefore the Applicant’s parental responsibilities and rights
are not in dispute.
ROLE
OF THE FAMILY ADVOCATE
[19]
The
role and mandate of the Family Advocate is trite and  clearly
set out in
Mediation
in Certain Divorce Matters Act
[4]
as amended.  It plays
an important role in ascertaining and presenting the minor child s’
views to court.
[5]
And when
conducting an investigation it has to take into consideration all
evidence produced by the parties and to  promote
the best
interest of all minor children.  In this case the minor child’s
best interest in respect of primary care, residence
and contact are
severely disputed by the parents, that is, the Applicant and the
Respondent. In
Soller
NO
v
G
,
[6]
Satchwell, J  stated as follows: “The Family Advocate
provides a professional and neutral channel of communication between

the conflicting parents (and perhaps the child) and the judicial
officer.”
[20]
The Family Advocate
may not take sides or attempt to usurp the court’s discretion.
The court is required to take into consideration
any report produced
by the Family Advocate, but is not bound by the recommendations of
the Family Advocate.
[21]
The First Family
Advocate’s report of 3 September 2021 at paragraph 9.3, states
as follows:
“
The
relocation of the Respondent and the minor child resulted in the
Applicant not being able to exercise (regular) daily contact
with the
minor child as the position was when they all resided within the
Bethlehem district. The undersigned is of the view that
this cannot
be seen to be used as a yardstick to fault the Respondent with. The
manner in which the Respondent relocated and withheld
certain
information from the Applicant, was already viewed as contact
frustration.”
[22]
The Family Advocate
goes further at paragraph 10.3.2 and recommends as follows:
“
Contact
for one long weekend per month where the Applicant exercise contact
with the minor child from the Thursday to the Monday.
It is
recommended that the parties meet each other halfway in order to
assist with curbing travelling costs. Possible place for
handover
could be Gariepdam or Colesberg.”
[23]
The Applicant being
aggrieved by the arrangement, raised issues with the Family
Advocate’s report, as the investigation in
respect of the
residence of the Respondent was not conducted, including the alcohol
and suicide allegations.
[24]
On 18 November 2021,
this Court ordered that the Family Advocate urgently supplement its
report and to conduct a full investigation
in respect of the
Applicant’s and the Respondent’s home circumstance as
well as the allegations that the parties levelled
against each other.
[25]
The
supplementary report of the Family Advocate indicated that due to the
minor child’s tender age, the Family Counsellor
could not
conduct a formal assessment, but instead conducted an informal
observation of the child’s interaction with both
parents.
[7]
The Family Advocate in the first report page 767 of the second
bundle, made the following observations:
“
6.3.2
During the interaction with the mother, there was a positive
interaction between the mother and the child.”
At
paragraph 6.3.3, t
he report indicates that after fifteen minutes
the child was looking for the father and the mother could not keep
her attention
any longer.”
[26]
Furthermore, the
Family Advocate took into consideration the different collateral
information obtained from the parties that were
involved with the
assessment of the Applicant, as well as the Respondent.  And
concluded that it is in the minor child’s
best interest that
primary residence be with the Respondent, based on the fact that the
child has a stronger emotional bond with
the Respondent.
[27]
The supplementary
report of the Family Advocate, dated 25 April 2022, on page 11 of the
said report, highlighted as a matter of
urgency that the high levels
of conflict between the parties; the parent’s inability to
communicate effectively; the minor
child’s exposure to the
parent’s conflict and hostile relationship, “
there
is no longer time to waste and the minor child needs to be put in a
situation where stability and security is of the utmost
importance to
ensure that her development needs are met.”
[28]
The above report
concluded that the minor child’s best interests would be served
if she is placed in the primary care and
residence of the Respondent.
[29]
The one sided report
by Ms Suzette de Jager concluded that:
“
To
resolve the issues between the parents, I advise him to do face to
face mediation to mediate a parenting plan. He is willing
to do it,
but foresee problems as the mother will storm out of such meetings.”
[30]
As stated above,
that the report is one sided. Ms Suzette de Jager only consulted with
the Applicant and did not obtain the expressed
view of the
Respondent. It is for this reason that the Family Advocate did not
take the report into consideration. On the other
hand, this step
taken by the Applicant can be viewed as an attempt to resolve the
conflict between the parties.  Any attempt
by parents to resolve
their conflict with regard to their minor child should be applauded
and encouraged.
[31]
Then there is the
Respondent’s report from FAMSA which also did not obtain the
expressed view of the Applicant, the report
also concluded that:
“
we
discussed how she and the other parent would go forward in
co-parenting, bearing the best interests of the minor child
concerned.”
[32]
Even if the parties
attend separate sessions, the common issue that comes out of this is
that there is high conflict between them.
It appears that none
is prepared to compromise for the sake of the minor child. It would
be ideal if both as parents to the minor
child could have parenting
skills methods to assist in minimising their conflict and work
together in the best interest of the
minor child. The Family
Advocate’s report indicate the same issue of both parents’
failure to work together. These
separate sessions the parties
attended, are just a confirmation that their conflict will not be
ending anytime soon. Both the Applicant
and the Respondent must
realise that the conflict imposed on each other, will have a negative
impact on their minor child, be it
her self-esteem, mental and
physical well-being. It is therefore imperative that they resolve the
conflict.
[33]
In
my view, if the parties’ conflict continues unabated over a
child who is only three (3) years, the Court will have no option,
but
to appoint a legal representative in terms of section 55 of the
Children’s Act which provides as follows:
“
That
if the court is of the opinion that it would be in the best interest
of the child to have legal representation, the Court must
refer the
matter to the Legal Aid Board.”
ISSUES
IN DISPUTE
[34]
The Applicant
submitted a memory stick with different videos involving the
interactions between himself and the minor child and
interactions
between the Respondent and the minor child. Most of the recordings
were done by the Applicant. I watched these videos
and certain
observations were made.
[35]
The first video
shows the Respondent talking with the minor child on a video call.
The second video shows the Applicant at the gate
of the residence of
the Respondent and the Respondent refusing to open the gate. Two more
videos show the Applicant in the vehicle
with the minor child and the
minor child was on a video call with the Respondent. The next video
shows the Applicant playing with
the minor child while waiting for
the Respondent and in this instance, the parties had an easy
engagement. Most important to note
is that, there was no conflict. If
the parties were able to have one engagement or interaction without
conflict, I have no doubt
that with a positive attitude from both
sides, the parties will be able to relate as adults and as parents.
[36]
However, with the
following video, after such a matured exchange of he minor child in
the previous video, the conflict emerged yet
again. Both parties
could not agree over the collection of the minor child. The
Respondent refused to release the minor child,
stating that she does
not know where the Applicant was taking the minor child. This kind of
disagreement is a setback. The parties
could easily agree on the
issues in dispute, but because of their constant conflict, it is
difficult for them to agree on things
that do not need to be argued
on. For example, the Applicant could have given the address and the
Respondent should have released
the child.
[37]
The Applicant raised
the following allegations that, that the Respondent abused alcohol,
is on anti-depressants, neglects the minor
child, has been suicidal
and moved to a different place of residence, as well as changes to
the minor child’s crèche
more than four times. These are
yet other issues in dispute.
[38]
However, to dispute
the allegations of alcohol abuse, the Respondent went for an alcohol
test at Ampath Laboratories in Gqeberha.
The results were analysed
and the following was stated:
“
I
conducted a 5 panel urine drug test, without warning, and accompanied
the patient into the bathroom to avoid any possibility of
tempering
with the sample. This all came back negative for any use of
amphetamines, cocaine, methamphetamines, opioids and THC
(dagga).
I
further also did a blood test on her that included 10 drugs of abuse
(TIK included) as well as a blood ethanol level. This all
came back
negative for any abuse. The blood ethanol level was at 0.013 with a
complete abstainer expected to have a level of 0.010.
This is
marginally higher than someone with no ethanol exposure, but not a
level where any alcohol abuse or overuse would be suspected.”
[39]
I
must say, it is quite concerning that the Respondent went for the
test at 11h00 and at that time of the morning, she had alcohol
levels
of 0.013. However, Counsel for the Respondent submitted that despite
the alcohol level of 0.013, there was no indication
of alcohol abuse
nor any indication that on the day of the test, the Respondent could
not stand up straight. Counsel mentioned
that the Respondent may have
possibly taken medication.  Furthermore, blood tests did not
show any indication of abuse of
the drugs mentioned and with the
Respondent having admitted being on Cilift 20mg.  Though the
Applicant wanted the tests to
be taken from the Respondent’s
hair follicles, I am inclined to agree with Counsel for the
Respondent that the Applicant
requesting hair follicle tests is
pursuing other issues. The blood test results are sufficient and have
proven that the Respondent
is not an abuser. To the extent that the
pathologist mentioned that the Respondent was accompanied to the
bathroom to avoid tampering
of the sample and even went as far as
taking a blood sample, this is quite sufficient.
[40]
This particular
issue raised by the Applicant that the Respondent is on
anti-depressants and taking Cilift 20 mg daily, has already
been
admitted. The Respondent indicated that this medication was
prescribed since age seventeen (17) as she was diagnosed with

depression. The Applicant cannot use this against the Respondent as
the Applicant already knew of the intake of Cilift 20mg when
they
were dating. The Respondent cannot be faulted for being on
anti-depressant medication. In actual fact, the Respondent should
be
applauded for taking responsibility of her health instead of this
being used against her.
[41]
Another
issue raised by the Applicant of nappy rash is neither here nor
there. It is a well-known fact that babies develop nappy
rash
throughout periods of nappy use. Though annexure “
NVV6”
depicts severe nappy rash, which is concerning, but it is not clear
whether the nappy rash developed while the child was visiting
the
Applicant or whether the minor child was dropped off with the rash
already having had developed. In my view, both parties are
equally
responsible for the minor child’s wellbeing. The Respondent in
her answering affidavit mentioned an incident where
the Applicant did
not want to change the minor child’s nappy, instead he would
get extremely nauseas and usually vomit. (page
286, para 10). No
fingers can be pointed when it comes to the care of the minor child.
Both parents are responsible in taking care
of the child.
Pointing fingers at each other to score points is not helpful more so
for the best interests of the minor child.
They should rather
try to assist each other and fix each other’s weak points when
it come to the up-bringing of the child,
as parenthood is indeed
trial and error. Dr Janani Shankar,
[8]
a psychiatrist said the following; “
Parenting
is a trial and error method that brings higher responsibilities to
the couple, where, sometimes parents make mistakes,
which is fine as
long as they are ready to learn from their mistakes.”
[42]
What is of grave
concern, is that which was stated on page 16, para 17 of the
Applicant’s founding affidavit. It reads as
follows:
“…
I
heard a very disconcerting sound coming from HVV and I immediately
ran to the room where the respondent and HVV slept. When I
came into
the room, I saw the respondent covered HVV’s face with a pillow
and a blanket. When the respondent saw me in the
room, she pulled the
pillow and blanket away from HVV. I immediately took HVV away from
her and tried to comfort her.”
[43]
The Respondent’s
response to this is a vehement denial to the allegation levelled
against her by the Applicant. In the Respondent’s
answering on
page 290, para 17, the following is stated:
“
I
find it odd that this incident was never mentioned before; in his
application for contact rights in the Children’s Court…”
[44]
The allegation that
the Respondent left the minor child at an informal settlement and in
the care of the paternal grandfather, who
was at that stage was
seventy-five (75) years old, would amount to the Respondent not
acting in the best interest of the minor
child. If the Respondent
needs to go to work or run errands, the person to assist in this
regard would be the Applicant. In the
same breath, the Applicant
cannot be faulted for being concerned about the minor child’s
safety and being in the care of
a seventy-five (75) year old.
Its indeed no secret that minor children are no longer safe.  It
is frequently recorded
in the media on the disappearance of minor
children in the country. Therefore, the concerns of the Applicant in
respect of the
minor child’s safety at an informal settlement
may be warranted
(my emphasis).
MINOR
CHILD’S STABILITY
[45]
The Respondent, has
in short space of time and in the minor child’s two (2) years
of life moved more than five times as well
as changed the minor
child’s crèches four times.  This is quiet
concerning.  The Respondent has not shown
to move for better
work opportunities or better accommodation.  It appears in the
papers that the Respondent’s movement
was in order to frustrate
contact between the minor child and the Applicant. Section 7 (1) (k)
of the Children’s Act provides
as follows:
“
the
need for a child to be brought up within a stable family environment
and, when this is not possible, in an environment resembling
as
closely as possible a caring family
.
[46]
Furthermore, the
constant moving and changing of the minor child’s place of
residence as well as the crèche, affects
the minor child’s
stability in terms of section 7(1)(k) of the Children’s Act,
including the current arrangement that
the minor child now attends
crèche in Gqeberha for two weeks and then for two weeks the
minor child is in Bethlehem. The
minor child has to adjust to a new
environment every two weeks. The parties as parents should ask
themselves, if they were in the
position that they are putting the
minor child in, would it be acceptable to either of them, to be
shuttled every two weeks to
a new environment? This arrangement in my
view is not in the best interest of the minor child. Emphasis is on
the minor child’s
need for stability, be it her education or
living arrangement.
[47]
Of the two parents
in my view, the Applicant has shown to be the more stable parent.
The Respondent may have a stronger emotional
bond with the minor
child, but with the constant moving of the Respondent, the minor
child at age three (3), needs a stable home
and/or stable parent be
it the mother or the father.
MAJOR
DECISIONS THAT AFFECT THE MINOR CHILD
[48]
Section
31(2) of the Children’s Act is clear on major decisions that
affect a minor child which cannot be made without due
consideration
of the views and wishes of the other co-holder of parental
responsibilities and rights, which in this instance the
Applicant
bears these responsibilities. The Respondent just kept on relocating
with the minor child without taking into consideration
the views of
the Applicant. In
J
v J
[9]
,
the Court considered, to what extent co-holders of parental
responsibilities and rights can exercise these. The Court observed

that under section 30 of the Children’s Act, co-holders of
parental responsibilities and rights enjoy a large measure of

autonomy.
[49]
With
this constant relocation of the minor child, the Respondent must have
regard to the interruption of the bond between the Applicant
and the
minor child. In
Jackson
v Jackson
[10]
, the Court emphasised the
impact of relocation on the non-moving parent and it should be at the
forefront of the relocating parent’s
decision.  Section 7
(1) (e) provides as follows in respect of contact with the minor
child that:
“
the
practical difficulty and expense of a child having contact with the
parents, or any specific parent, and whether that difficulty
or
expense will substantially affect the child’s right to maintain
personal relations and direct contact with the parents,
or any
specific parent on a regular basis.
[50]
Furthermore,
the Respondent may have the right to move freely in terms of Section
21 (1) of the
Constitution
[11]
, Act 108 of 1996 which
provides that: “
everyone
has the right to freedom of movement.”
However, The Respondent has to take into considerations the
provisions of the Children’s Act if she had the intention
to
move and changes in residence as she did. The mere fact that the
minor child had gone through four crèches, confirmed
the
instability that the child was exposed to. It is known that crèche
attendance is the foundation phase of any child.
And to change
crèches so frequently would indeed affect the minor child’s
development.
ALLEGATIONS
RAISED BY THE RESPONDENT
[51]
The
Respondent alleged that the Applicant failed to take the minor child
off the nappy and the pacifier, failed to cut the minor
child’s
nails and maintain her hair. Furthermore, the Respondent alleges that
the Applicant failed to communicate with her
on issues that affect
the child.  The court has to take a dim view when parents
constantly raise allegations against each,
in order to discredit each
other.  In the report of the Family Advocate
[12]
,
the following is noted with regard to the allegations:
“
In
considering the remaining allegations identified by both parties as
highlighted in Mrs Van Der Westhuizen report, that informs
a lack of
parental capacity and that could have a negative impact on the
child’s safety, well-being and best interests..
both parties
have the necessary capacity to provide effective care for the child
and the concerns raised are those that can be
effectively addressed
through further professional assistance should the parties not be in
a position to resolve it themselves.”
BEST
INTEREST OF THE MINOR CHILD
[52]
Ultimately, the
allegations raised by both parties against each other whereas
concerns should be centred around the minor child’s
well-being,
it is clear that the continuous litigation bears no consideration for
what is in the best interest of the minor child.
[53]
The
best interests, standards and guidelines of the minor child are set
out in section 7 of the Children’s Act. It would probably
be in
the child’s best interest if parties could adhere to these
principles. Equally so, it is that these principles were
emphasised
in
McCall
v McCall
[13]
, where it was confirmed
that it is the golden thread that runs through the best interests of
a minor child.
[54]
The Family Advocate
in its first and second report, places more emphasis on the emotional
bond between the minor child and the Respondent.
However, this is not
the only factor to take into consideration. A further factor that
this Court has to take into consideration
is, which parent is better
able or more suitable to promote and ensure the child’s
physical, intellectual, moral, emotional
stability, security and
safety. This list is not exhaustive as stated in
McCall
Supra
.
[55]
It
is indeed difficult in matters that involve a minor child’s
primary residence be decide on the basis of which home is better
than
the other. This Court is called to weigh the competing advantages and
disadvantages of the circumstances of both parents.
In
Ford
v Ford
,
[14]
Weiner, AJ suggested that it is unnecessary  for the court to
decide which of the two homes would be better.
In
Godbeer
v Godbeer
,
[15]
Nugent J went a step further and stated that: “
The
quality of  [the children’s schooling, the relative
standard of living and so forth are quite peripheral.”
[56]
It ought to be noted
that the Court takes a deem view at the conduct of the Respondent, to
the extent that she would leave the minor
child in the care of a
seventy-five (75) year old. This alludes to not taking into
consideration the minor child’s safety,
neither the minor
child’s best interests.
[57]
Having
considered the circumstances of both parents, in my view the
Applicant appears to be the more stable parent and is able to
provide
the minor child with stability, safety, security, and proper
accommodations. The Respondent does not have more or better
parental
responsibilities and rights. The parties have equal parental rights
and responsibilities. Even necessary to mention, it
is that the
Applicant’s parental responsibilities and rights in terms of
section 21 were already confirmed by the Children’s
Court in
Bethlehem. The Respondent has been uncooperative since litigation
started in Bethlehem.  This Division, in the matter
of
Van
der Linde v Van der Linde
[16]
,
the Court said the following:
“
Die
begrip 'bemoedering' is aanduidend van 'n funksie eerder as
'n persona en is hierdie funksie nie noodwendig geleë

in die biologiese moeder nie. Dit behels die teergevoelige gehegtheid
wat voortvloei uit die aandag wat van dag tot dag bestee
word aan die
kind se behoeftes aan liefde, fisieke versorging, voeding,
vertroosting, gerustheid, geborgenheid, bemoediging en onderskraging.

Alleenlik die ouer wat hierdie behoefte kan bevredig sal daarin slaag
om 'n psigologiese band met die kind te smee in welke ouer
se sorg
die kind kan ervaar dat sy bestaan nog veelbeduidend is, en wat met
toegeneentheid beskut en beskerm word.”
PARENTAL
ALIENATION
[58]
Parental
Alienation,
[17]
is a
psychological manipulation of a child into demonstrating unwarranted
fear, disrespect and  hatred whereby one parent
employs tactics
such as criticizing the other parent; stop the child from having
contact with the other parent.
[59]
The
Appellate Division in
T
v M
,
[18]
acknowledged the dangers of Parental Alienation.  In
Soller
Supra
,
the Court confirmed that Parental Alienation had occurred. The
conduct of the Respondent on various occasions had been to frustrate

contact between the child and the Applicant, to the extent that when
the Respondent relocated to Gqeberha, she did not inform the

Applicant that she was relocating with the minor child. In Qqeberha,
the Applicant had to approach the Magistrate Court for assistance
in
order to exercise his parental responsibilities and rights.
The Court went as far as to issue a warrant of arrest
against the
Respondent, whereupon the Applicant went to the South African Police
to open a criminal case against the Respondent.
[60]
Indeed, Parental
Alienation is a complex issue as one parent believes he or she is
acting in the minor child’s best interests.
Courts have to be
conscious of any conduct of a parent who may in a subtle way alienate
the other parent. Parental Alienation requires
a close and careful
scrutiny. The most common example of Parental Alienation is when a
parent interferes or frustrate the other
parent to exercise contact
with the minor child. The Respondent went as far as to tell the
presiding officer that the Children’s
Court’s order of
Bethlehem was fraudulently obtained whereby the presiding officer
admonished the Respondent for making such
serious allegations with
regard to a court order that was properly obtained. The Court ordered
the Respondent to have the minor
child ready within two hours. The
disrespect that the Respondent has shown towards the court orders
confirms that she does not
act in the minor child’s best
interest. The court order dated 16 April 2021 on page 126, went as
far as to order as follows:
“
The
Applicant (C[....] L[....]) is directed to
make contact with the Office of the Family Advocate, Bloemfontein,
within a week of this
order, to arrange for a meeting with the Family
Advocate in order to assist with the investigation and to fully
co-operate with
the Family Advocate during such investigation,
failing which the Applicant (C[....] L[....]) may be convicted of
contempt of court.”
[61]
The Respondent’s
conduct is on the brink of Parental Alienation. The several court
cases that the Applicant had to institute
against the Respondent just
so he can exercise contact with the minor child, is astonishing.
Section 35(1) of the Children’s
Act states as follows:
“
Any
person having care or custody of a child who, contrary to an order of
any court or to a parental responsibilities and rights
agreement that
has taken effect as contemplated in section 22 (4), refuses another
person who has access to that child or who holds
parental
responsibilities and rights in respect of that child in terms of that
order or agreement to exercise such access or such
responsibilities
and rights or who prevents (my emphasis) that person from exercising
such access or such responsibilities and
rights is guilty of an
offence and liable on conviction to a fine or to imprisonment for a
period not exceeding one year.
CONCLUSION
[62]
Indeed, it has been
affirmed in several court decisions that the notion of mothers as
primary care givers has diminished
(Van
der Linder
Supra
)
and this to avoid unfair discrimination against either parent when
deciding what is in the best interest of the minor child.
[63]
Even if the Court is
the upper guardian over all minor children, however, it is with great
difficulty that a Judge who does not
know the child, except reading
in the pleadings about the child, has to decide on what is in the
child’s best interest as
parents are emotionally unable to
decide this for their child.
[64]
The minor child is
currently three (3) years. The volume of pleadings, with two arch
lever files is disheartening. Of concern also
for this Court, it is
fact that the parties’ constant litigation can only mean that
without proper parenting skills, this
may not be the final matter
before this court. However, it would be in the minor child’s
best interest that as parents, parties
attempt to go for mediation,
or psycho-therapy.
[65]
With all that has
been considered, in my view the minor child’s best interests
will best be served by the Applicant. The Applicant
has shown (good
cause) to be in a better position to take care of the minor child.
The Applicant has shown stability and security
for the minor child.
The Court would therefore not follow the recommendation of the Family
Advocate as it did not deal with the
instability of the minor child
and the obvious Parental Alienation, that is gradually being
exercised by the Respondent as well
as the instability which the
Respondent has shown.  Nor is the Court bound by the
recommendations of the Family Advocate.
[66]
The Applicant in the
Notice of Motion prayed for the Respondent to have supervised
contact.  This court will not grant such
a prayer as it is not
necessary for the Respondent to exercise contact under supervision,
except to emphasise that the Respondent
is not to disappear with the
minor child when she exercise her contact.
[67]
The Applicant in the
written Heads of Argument requested that the Respondent be ordered to
return to Bethlehem.  Unfortunately,
this court cannot order her
to return to Bethlehem.  That is tantamount to interfering with
her rights of freedom of movement.
The Respondent has to make
that decision on whether she wishes to return to Bethlehem.
[68]
The current
arrangement between the parties of shared residence will remain in
place until end of the year.   The court
order will be
implemented as from 1 January 2023.
COSTS
[69]
As this matter
involved a family dispute, both parties are deemed to have acted in
their minor child’s best interest. Therefore,
each party should
pay their own legal costs.
ORDER
[70]
Order is granted in
terms of Part B of the Notice of Motion as follows:
1.
It is declared that the
parties are co-holders of parental responsibilities and rights in
respect of the minor child
H[....]
V[....]
, a girl
born on the 11
th
of February 2019 and currently is 3 years old (hereinafter referred
to as “
H[....]”
);
2.
The Applicant shall have
care and primary residency of
H[....]
as contemplated in section 18(2)(a) read with sections 1, 18(3) and
21 of the Children’s Act 38 of 2005 (hereinafter referred
to as
“the Children’s Act”);
3.
The Respondent shall have
contact rights in respect of
H[....]
every alternative weekends from Friday 14h00 till Sunday 18h00.
4.
The Applicant is ordered to
contribute half of the travelling expenses of the Respondent.
5.
The
parties shall equally share in the long school holidays and the short
school holidays are to alternate between the parties.
6.
The parties are to exercise
three hours contact on the   birthday of the minor child or
that of the parties should such
a day not coincide with the normal
contact weekend or holiday.
7.
Contact on Father’s
Day/Mother’s Day for three hours, if such a day does not
coincide with the normal contact weekend
or school holiday
8.
Regular telephonic/video
call contact on a daily basis between the hours 16h00 till 19h00.
9.
The parties are ordered to
approach a family mediator if any disputes arise that involves the
minor child, before approaching court.
10.
The parties are ordered to
attend parenting skills training, co-parenting and communication
skills training.
11.
Each party to pay their own
costs.
CHESIWE,
J
On
behalf of the Applicant:
Adv.
J
van Rooyen
Instructed
by:

McIntyre & van der Post
Attorneys
BLOEMFONTEIN
On
behalf of the Respondent:
Adv.

KP Mohono
Instructed
by:

Van Dyk Attorneys
BLOEMFONTEIN
[1]
Act 38 of 2005
[2]
FAMSA is non-profitable organisation, that was established on 6
October 1954 for purposes of initiating and co-ordinating resources

to find ways of ensuring healthy, stable and independent families as
well as marriages.
[3]
(Report dated 19 February 2021 and attached as annexure NVV2 page 48
of the founding affidavit)
[4]
Act 24 of 1987
[5]
See Brown v O K Abrahams & Others [2004] 1 JDR 0011 (C) at 414
-424
[6]
2003 (5) SA 430 (W)
[7]
Section 10 of the Children’s Act 38 2005, provides for every
child to participate in any matter concerning the child’s

rights and to express his/her views.
[8]
Dr Janani Shankar, psychiatrist published an article on Parenting
Skills, the article was published 20 June 2022.
[9]
2008 (6) SA 30 (C)
[10]
2002 (2) SA 303 (SCA)
[11]
Act 108 of 1996
[12]
Page 754 of Bundle 2 paragraph 8.3
[13]
1994 (3) SA 201 (C)
[14]
2004 2 ALL SA 396
(W)- unreported
[15]
2000 (3) SA 976 (W)
[16]
1996 (3) SA 509
(O)
[17]
AS Hornby Oxford Dictionary 9 Edition, Oxford University Press 2015.
[18]
1997 (1) SA 54
(A)