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[2022] ZAFSHC 343
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P [....] H [....] v Spies (717/2022) [2022] ZAFSHC 343 (7 December 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:
717/2022
In
the matter between:
PETER
HENRICO
Applicant
and
DANIELLA
ROEN SPIES
Respondent
BEFORE:
CHESIWE, J
DATE
RESERVED:
29 June 2022, upon receipt
of the written supplementary heads of arguments on 8 July 2022
respectively.
DELIVERED
ON:
This
judgment was handed electronically by circulation to the parties'
representatives by email. The date and time for hand-down
are deemed
to be at 12h00 on 7 December 2022.
[1]
The Applicant launched an urgent
ex-parte
application on 17
February 2022 for the temporary suspension of the parental
responsibilities and rights
(PRR)
of the Respondent. The
application is opposed by the Respondent.
[2]
The relief sought by the Applicant was granted on 17 February 2022
with a return date of
31 March 2022. On the return date, the rule
nisi was again extended to 8 April 2022 for the report of the Family
Advocate and for
the parties to file further papers.
[3]
On the 28 April 2022 the Respondent filed a counter-application
seeking the immediate restoration
of her
PRR
and the
return of the minor child to her primary care and residence.
[4]
On 15 June 2022 both applications were heard, wherein the Legal
Counsels proceeded with
oral arguments. The parties were requested to
file their written heads of argument on 29 June 2022 and 8 July 2022
respectively.
The matter was therefore reserved on the latter date.
BACKGROUND
[5]
The Applicant and the Respondent are the biological parents of
PH.
The parties have been involved in litigation over a period of two
years.
[6]
The parties were not married to each other, but were in a romantic
relationship and PH was
born out of that relationship. The parties
separated in 2020 after several attempts to reconcile were
unsuccessful.
[7]
After the relationship ended, the Respondent started to frustrate the
Applicant's contact
with
PH.
The Respondent moved from the
known address in Reddersburg to an unknown address. Thereafter, she
sent the Applicant a message that
her new partner will be changing
PH's
surname and adopting the minor child.
[8]
The Applicant instituted legal action in the Magistrate Court in
Reddersburg on 15 September
2020, under case number 14\1\4-11\2020.
The court granted an order as follows:
"My
understanding, therefore, is that the parental responsibilities and
rights in terms of section 21(1)(a) of the Children's
Act and there
is no need for
a
court order to determine or confirm this. In
this case of
a
dispute, the procedure in sub-section
3
(a)
and (b) should be followed. The application for such an order is not
granted.
"
[9]
On 10 December 2020, the Applicant approached this Court, under case
number 4697/2020 for
PRR
concerning contact of which the court
granted the usual alternative contact on alternative weekends,
including reasonable daily
telephone contact. In spite of the said
court order, the Respondent continued to frustrate contact between
the Applicant and the
minor child.
[10]
On 17 February 2022, the Applicant launched an urgent application
under case number 717/2022 and this is the case
before this court.
The Applicant's contention in this matter is that the Respondent
disappeared with the minor child and he could
not trace the
Respondent and the minor child; that the Respondent physically abused
PH;
the Respondent neglected
PH;
that the Respondent
abuses alcohol and that the Respondent is addicted to narcotics.
[11]
The Respondent proceeded to launch a counter application on 26 April
2022, which the Applicant opposed seeking
the following relief:
"1.
The immediate restoration of my full rights and responsibilities with
regard to the minor child;
2.
The immediate return of the minor child to my primary care and
residence;
3.
A contribution towards my costs for travelling to and from
Bloemfontein for the necessary consultations with my attorney of
record,
attendance of appointments with the Family Advocate, and
attendance of court;
4.
That an investigation to be lodged into the illegal removal of
P [....] from my care during or about December 2020 by the
Applicant and Giepie Good child;
5.
An investigation to be lodged into the Applicant's fitness to
possess
a
firearm;
6.
Maintenance in the amount of R3000,00 per month payable by the
Applicant t the Respondent on the first day of the month following
the date of this order and monthly on each first day of the month
thereafter;
7.
An order that the maintenance amount increases at
a
rate of
10% per annum on the anniversary of this order;
8.
An order barring the Applicant from any further litigation
against me with relation to the minor child without leave of the
Honourable
Court, and without notice to the Family Advocate;
9.
Costs of suit."
[12]
What this Court has to determine is whether the minor child was a
child in need of care and protection as
stipulated in the Regulations
of the Children's Act; whether the minor child's primary care and
residence should be restored to
the Respondent and; whether the
Respondent's parental responsibilities and rights should be
terminated.
[13]
The Applicant in the Founding Affidavit contends that he was concern
about the whereabouts of
PH
as the Respondent had a tendency
to disappear with the minor child, including the suicides attempts of
the Respondent and that prompted
him to launched the application. The
Respondent in her opposing affidavit denied that allegation and
raised allegations against
the Applicant that he was controlling and
abusive towards her.
LEGAL
FRAMEWORK FOR UNMARRIED FATHERS
[14]
The
legal framework
of
unmarried fathers,
section
21 of the
Children's
Act
[1]
,
provides as follows:
"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-
(a)
if at the time of the child's birth he is living with the
mother in a permanent life partnership; or
(b)
if he, regardless of whether he has lived or is living with
the mother-
(c)
consents to be identified or successfully applies in terms of
section 26 to be identified as the child's father or pays damages in
terms of customary Jaw;
[15]
In terms of section 21(1)(a), the parties stayed together before and
after the minor child was born. Therefore,
the Applicant acquired
parental responsibilities and rights with regards to the minor child.
In the papers, it appears that the
parties are not in dispute over
the acquired
PRR
of the Applicant. The Applicant therefore
automatically acquired his parental responsibilities and rights. The
court on 10 December
2020 confirmed these
PRR
including
guardianship.
[16]
Therefore the issue of the Applicant's
PRR
was settled and
this court need not deal with that.
CARE
AND PROTECTION OF MINOR CHILD
[17]
Based on the urgent application brought by the Applicant before this
Court on the removal of the minor child
because the Respondent
disappeared with the minor child and the child was in desperate need
of care and protection, the Applicant
in the founding affidavit
states that:
"8.2
The court would have noted that at that point in time I
was
left completely in the dark
as
to the whereabouts of my
minor child and I truly and honestly feared for his wellbeing.
8.3
With the help of my attorney
we proceeded to
institute
an application
on the
same
terms, seeking the
same
relief from this Honourable Court.
.
8.4
The court would have noted from the aforesaid application that
Ms
Spies and the location of my minor child were still unknown
to me when the application
was
instituted."
[18]
The Respondent in the opposing affidavit denied the allegations
levelled against her. Respondent mentioned
an incident where the
Applicant caused the minor child to sustain a large third-degree burn
on the right hand, due to the Applicant
having left the minor child
unattended near a braai fire. Further that the minor child had
separation anxiety after having spent
time with the Applicant. The
Respondent mentioned that the Applicant doubted whether the child was
his, though
a
paternity test was never conducted.
Respondent
also stated that the relationship between them
was abusive and controlling and that the Applicant threatened that he
would keep
the minor child away from her. Respondent denied that the
minor child needed care and protection.
[19]
Section S3(1) (Consolidated Regulations Chapter II) of the Children's
Act provides as follows:
"a
person authorised by
a
court order
a
designated
social worker or
a
police official who removes
a
child
and places such
a
child in temporary safe care
-
In
terms of
a
children's court order contemplated in section 15.1
(2U of the Act or (footnote). Without
a
court order in terms
of section 15.2 (1) of the Act (footnote) must complete
a
form
identical to form 30 and submit it to the temporary safe care as soon
as it is practicable. The person or police officer referred
to in
sub-regulation (1) must (a) give the relevant parent, guardian,
caregiver, next of kin social worker, religious counsellor
.
approved by the designated social worker, access to the child at
all reasonable times, subject to the terms of the court order and
provided such court order and provided such access is in the best
interest of the child; and notify the designated social worker
immediately of any difficulties with such placement and any change in
the child's residential address."
[20]
The minor child was removed from the care of the Respondent on 18
December 2020 with the assistance of the
South African Police Service
(SAPS), by a certain Gieppie Goodchild. According to the Respondent,
no court order was shown, and
neither was she given grounds for the
removal in terms of section 153(1) of the Children's Act which is
clear on the removal of
a child. Even if it is a police officer,
he/she must be authorised to do so. The court order dated 10 December
2020
(Annexure
C
on page 103) did not authorise
the Applicant to remove the child, but rather for him to exercise his
parental responsibilities
and rights and that depended on the
report of the
Family Advocate. However, due to the circumstances
at that time the Applicant had to act in what was the minor child's
best interest.
The Applicant correctly at that stage had to consider
the safety of the minor child. The Applicant cannot be faulted for
having
acted swiftly to prevent any harm that may occur to the minor
child.
[21]
On 27 January 2021
PH
was returned to the Respondent with no
explanation or any reason for the return of the minor child. On 22
February 2022, the minor
child was removed again by (5) five members
of the SAPS with a certain Captain Abel and in the presence of a
Candidate Attorney
who was named by the Respondent. The Applicant in
the founding affidavit explained that the child was removed as a
result of the
Respondent continuing to frustrate his contact rights
as well as the alleged neglect of the minor child.
[22]
The Applicant under case number 717/2022 whereupon the Applicant had
approached the court on an urgent
ex parte
basis, the Court
ordered the temporary suspension of the Respondent's parental
responsibilities and rights of the minor child including
placing the
minor child in the temporary care of Ms X. The Applicant's founding
affidavit mentioned that the Applicant was concerned
that the
Respondent tends to disappear with the minor child for long periods,
to which the Respondent explained that she was angry
with the
Applicant, it was for this reason that she did not want the Applicant
knowing her whereabouts. The Applicant's conduct
can also not be
faulted due the suicide allegations against the Respondent and it may
due to such serious allegations that the
court ordered the removal of
the minor child.
SUPPORTING
AFFIDAVIT OF MS X.
[23]
The
supporting affidavit of Ms X in the main application,
[2]
briefly confirmed that she is a teacher and is able to provide the
minor child a place of safety and a comfortable environment.
[24]
At
the time, the Court ordered for the child to be placed in the safety
of Ms X, her place was not registered as a place of safety.
She
indicated as follows in her supporting affidavit
[3]
:
"I
am
in the process of applying to be registered as
a
temporary place of safety and undertake to provide the Honourable
Court with confirmation of such registration as soon as it becomes
available."
[25]
The Court in ordering such was obviously doing it in the minor
child's best interest and this cannot, therefore,
be faulted.. As the
upper guardian of all minor children, a Court has to take into
consideration any information that appears to
put the child in danger
or at risk. It maybe as well that Ms X's place was at that stage the
better option for
PH
and it was in his best interest to be
place in Ms X 's care. Even if, Ms X was not registered as a
temporary place of safety, she
still had a duty to keep the
Respondent updated about the minor child. The Respondent was not
informed in terms of Regulations
153(2) as to the whereabouts of the
minor child, and to the extent that Ms X went to visit her family
without informing the Respondent.
The Regulations in the Children's
Act are clear as to the removal and travelling of a minor child who
was placed in safety. In
spite of the Respondents faults and short
comings, she was to be informed of the minor child's movements.
[26]
The
Applicant was granted leave to file a supplementary affidavit with
new information obtained from various parties pertaining
to the
alleged abuse of the minor child.
It
is in this supplementary affidavit that the identity of Ms X was
disclosed
[4]
[27]
The following is noted in Ms X's supporting affidavit on page 158:
7.
"I
did not know the Applicant before this. I have, however, in the past
few weeks, had several discussions with the Applicant
about P [....]
, his current condition, his medical condition, his development,
challenges and progress made etc.
8.
Since
17 February 2022, I have cared for P [....] .
I
provided him with
a
loving home, with much-needed
attention,
attended
to
his
medical
needs
and
consultations,
had
P
[....] attend my school and made
a
great effort to
provide more than the necessary care, love, affection and stability
that P [....] deserves."
[28]
Ms X, now known to be CA[....] P2 [....], confirmed that
she did not know the Applicant, nor
the minor child as a consequence
that the minor child was put in the safety of a total stranger. It
may have been traumatic for
the child to be put in the care of a
stranger. This is not a new thing as many children are frequently
placed in places of safety
or foster care with strangers. In most
instances the place of safety maybe the immediate available place of
safety for a child.
At this point, I would pause to mention that Ms
Potgieter must be applauded for having achieved an improvement in 44
days of the
minor child's development stages. According to Dr de
Abreu, the minor child had severe developmental delays, and was
diagnosed
Autism. That means the minor child needed the utmost care
for a child diagnosed with Autism.
ALLEGATIONS
OF ABUSE OF THE MINOR CHILD
[29]
The
Applicant alleged that the minor child was physically abused and
neglected.
To
support this allegation, the Applicant attached a supporting
affidavit of Ms Michaela Hawhorne
[5]
,
which
reads as follows:
"Gets
spanked and/or slapped ever so often.
This has
happened to such an extent that no normal and unaggressive approach
bears any fruit anymore.
The minor child has become
unresponsive to such discipline and acts almost like
a
donkey,
by not reacting at all when he gets subject to the punishment
bestowed upon him.
[30]
Furthermore,
the Applicant attached the confirmatory affidavit of Mr Willie
Struweg, father to the Respondent's second child C [....]
, that
confirmed that the C [....] sustained swelling on the left side
of his head and fracture of the left parietal bone.
[6]
With
such serious injuries of the Respondent's second child, the Applicant
had reason to believe that
PH
is
also at risk.
[31]
The removal of a child should be a last resort and be justified in an
emergency. There should be a reason
to believe that the child faces
imminent danger or serious harm. Indeed, section 152 allows any
police officer or social worker
to remove the child without obtaining
an authorised court order from the Children's court. In this
instance, the Applicant approached
this Court as upper guardian for
the removal of the minor child.
[32]
The person who removes the child in terms of Section 151 (7) should
complete the following important tasks:
"a)
without delay but within 24 hours inform the parent, guardian or
primary caregiver of the child of the removal of
the child, if that
person can readily be traced; and
b)
not later than the next court day bring the matter to the
clerk of the children's court for referral to
a
children's
court in terms of section 68.
"
(c)
The grounds for removal of a minor child are further listed as
follows in section 150(1) of the
Act and include situations where the
child:
a)
has been abandoned, orphaned or is without visible means of
support;
b)
displays behaviour which cannot be controlled by the parent or
caregiver;
c)
lives or works on the streets or begs for
a
living;
d)
is addicted to
a
dependence-producing substance and is
without any support to obtain treatment for such dependency;
e)
has been exploited or lives in circumstances that expose the
child to exploitation;
f)
lives in or are exposed to circumstances which may seriously
harm that child's physical, mental or social well-being;
g)
maybe at risk if returned to the custody of the parent,
guardian or caregiver of the child as there is reason to believe that
he
or she will live in or be exposed to circumstances which may
seriously harm the physical, mental or social well-being of the
child;
h)
is in
a
state of physical or mental neglect; or
ij
)
is being maltreated, abused, deliberately neglected or
degraded by
a
parent,
a
caregiver,
a
person who
has parental responsibility or
a
family member of the child,
or by
a
person under whose control the child is.
[32]
In
comparison to the stated injuries of C [....] in the
confirmatory affidavit of Mr Willie Struweg, wherein C [....] was
removed from the Respondent, the alleged abuse and injuries of the
minor child in this matter were not proven. However, it should
not be
a matter of
"wait
and see"
what
will happen.
If
there is any allegation of abuse of a minor child, no matter how
small, it has to be taken seriously and investigated.
The
Courts in child abuse and/or neglect matters, take a dim view of such
allegations and will with no doubt order that the child
be removed.
Even
if the Respondent denied the allegations that she abused the minor
child, I doubt that the Applicant would have returned from
the USA
for information that was not true. The Respondent on the other hand
also alleged that the Applicant abused the minor child.
The
third-degree burn was one of the alleged abuse.
The
Respondent further makes mention of the abuse she endured while in a
relationship with the applicant.
[7]
[33]
The general rule is that a child remains in the care of the usual
caregivers during any investigation, unless
that is not appropriate
because of the safety of the child, as in this instance. It is indeed
a drastic measure to remove a child
and it is for this reason that
the Children's Act gives stringent rules and provides penalties in
terms of sections 152(5) (6)
and (7) to limit the power of any person
or social worker who intends to remove a child.
[34]
Section 152(4) is clear when a minor child is to be removed and the
following has to be taken into consideration:
"(a)
The best interest of the child must be the determining factor
in any decision whether
a
child in need of care and
protection should be removed and placed in temporary
safe
care, and all relevant
facts must for this purpose
be taken into account, including the possible removal of the
alleged offender in terms of section 153 from the home or place where
the child resides, and the safety and well-being of the child as the
first priority.
"
[35]
The Applicant's supporting affidavits of Ms Sune Espag , reads as
follows:
"..
.I
have personally witnesses (sic) the Minor child in
a
state of
neglect in that his clothes are too small and dirty.
"
[36]
In paragraphs 7 and 8 on page 119, the following is noted:
"I
am
in
a
position to personally confirm that Ms Spies
abuses alcohol and Marijuana."
...
and have noted how
broken and damaged her teeth are."
[37]
In the supporting affidavit of Christelle Geel page 440 paragraph
7.1.3 the following is noted.
"...
during the infancy of the minor child, the Respondent and I did on
one occasion that I can recall, whilst the minor child was sleeping
and with no one else around, decided to go to
a
local pub for
alcoholic drinks.
"
[38]
Ms ChristelI Geel in paragraph 7.1.4, goes further and states as
follows:
"Today
I am fully aware of the risk this poses to the wellbeing of the minor
child and
am
not proud to state that I took part in such
conduct.
"
[39]
Part
of the Occupation Therapist's report Zanelle Blignaut on page 186,
volume 1 reads as follows:
[8]
"His
behaviour is anti-social, makes poor eye contact and ignores the
presence of the therapists in the room
...
and becomes
aggressive with actions of hitting, grinding teeth and screaming very
quickly if he does not get his way."
[40]
Ms Michaela Hawhorne, supporting affidavits, further confirmed the
abuse and neglect of the minor child and
states:
"I
see Ms Spies on
a
daily basis and personally witnessed the
manner in which she cares for the minor child. Ms Spies,
unfortunately, does not provide
the Minor Child with the necessary
care.
The Minor Child is at present and in my opinion,
being neglected.
"
[41]
In paragraph 10.2, Ms Hawhorne paints a discontent picture of the
physical abuse as follows:
"Gets
spanked and/or slapped over so often
.
This
has happened to such an extent
that
no normal and unaggressive approach bears any fruit anymore.
The
Minor Child
has
become unresponsive to such discipline and acts almost like
a
donkey.
by not
reacting
at all when he gets subiected to the punishment bestowed upon him."
(My
Emphasis)
[9]
[42]
Two of the Respondent's friends who have no interest in the matter
confirmed in their supporting affidavits
that the Respondent has been
neglecting the minor child since his baby days. They could have
easily kept quiet to shield and protect
the Respondent, instead as
friends, they acted in the minor child's best interest. To the extent
that they gave confirmatory statements
to confirm the neglect and
abuse.
[43]
Having considered the above supporting affidavits in my view the
minor child was indeed neglected and abused
by the Respondent. And
there was no other alternative than to remove the minor child from
the Respondent's care.
FAMILY
ADVOCATE'$ REPORT
[44]
The Court Order granted on 17 February 2022 was made in order to
investigate the minor child's best interest.
The Family Advocate
filed a report on 7 June 2022. Before dealing with the report, it is
only appropriate that I deal with the
intention of the establishment
of the office of the Family Advocate.
[45]
The
Office of the Family Advocate is established by the provisions of the
Mediation
in
Certain Divorce Matters
Act
24 of 1987.
The
purpose of the Act is to provide for mediation in certain divorce
mediation, read with section 21(3)(a) of the Children's Act
which
deals with disputes between unmarried parents of a minor child. Its
main role and function are to evaluate the parties concerned
and the
relevant circumstances at an enquiry and in ascertaining and
presenting evidence of a child's expressed views to the court.
(Brown
v Abrahams).
[10]
However,
the court is required to consider the report of the Family Advocate
but is not bound by its recommendations.
[46]
The Family Counsellor, Me Marlize Pretorius had a telephone interview
with certain individuals regarding
the minor child's living
circumstances. According to Me Pretorius, Me Alicia Willemse a
teacher at Brakejan Pre-Primary School
mentioned that the minor child
did not attend school for a full week due to reasons of ill health or
the Respondent being out of
town. The school had requested the
Respondent to take the child for occupational therapy, which she did
not do. The Teacher furthermore,
observed that the child wore the
same clothes as he had on the previous day. The primary school
teacher had to cut the minor child's
nails as these were too long.
[47]
Mrs
BR
Spies, mother to the Respondent mentioned to the Family
Counsellor that she is aware the Respondent smokes marijuana though
not
every day as she can still function well after using the
marijuana and that she is calm and collected after using marijuana.
The
Court do take cognisance of the fact that Marijuana has been
legalise and cannot discredit the Respondent for that.
[48]
Me Ingrid Zwane is a social worker at ENGO, an organization that
renders services to the community in Reddersburg
and the Respondent
is known to ENGO. Ms Zwane indicated that at the time of the removal,
the minor child was not in imminent danger.
Though the Respondent was
provided with parental guidance and professional counselling and was
to receive or undergo a psychiatric
evaluation, Ms Zwane concluded
that the lack of cooperation is an indication of the Respondent not
being able to accept structured
social work services due to failure
to report when she changed her address.
[49]
The
Family Counsellor's report as per the Court's order,
[11]
states as follows:
"11.11
According to the Children's Act, section 7(1), (c), (/)(ii) and (m)
-
"(C) the capacity of the parent, or any specific parent, or
any other care-giver or person in the needs of the child, including
emotional and intellectual needs; needs to be taken into
consideration."
"The
father
has a
concern about the mother's parental capacity. He
thinks that P [....]
is
in
a
state of neglect and
physical abuse by his mother. He
also
alleged that the mother
did not give attention to P [....] 's developmental problems that
need attention. The father
is
concerned that the mother
has
a
drug and alcohol problem. The fear that the mother could
disappear with P [....]
is also
of concern and the
mother
has
threatened people who are involved in the matter."
[50]
According to the Family Advocate's report, from the investigation the
following was evident:
a)
P [....] 's nails were not always cut and his clothes were
dirty and too big when he
was
removed from his mother's care.
His
ears
were
a/so
not clean. Physical care and
grooming will need
some
attention when he
is
living
with his mother.
Miss
X attended to his grooming after removal
from the mother and at the moment the father attends to it.
b)
The Paediatrician however found P [....] 's physical aspect to
be in good order. That he
was
in a state of neglect could not
be confirmed by the paediatrician.
c)
It
was
evident from the investigation that the mother
did not give attention to P [....] 's specific developmental problems
such
as
his speech delay by taking him to an Occupational
Therapist in 2021 when the school in Brakpan
also
made her
aware of the problem and requested such
assessment.
When the
father started making an appointment in Gauteng, the mother relocated
back to the Free State and P [....] never attended
Occupational
Therapy under the mother's care. It
was
only
after
he
was
removed
from
the
mother's
care.
It
was
only
after
he
was
removed
from the mother's care in February 2022, that he received
Occupational Therapy treatment.
d)
A concern is that the mother never worked and it does not
appear that she has any aspiration to find employment and generate an
income. The father is the only parent supporting P [....]
financially.
e)
The mother acknowledged that she still uses Marijuana, but she
denied the use of Tik. She did not go for drug testing as per the
court order. The father was indicated to pay for it. The mother's
delay in going for
a
drug test is of concern to the
undersigned. She has not made effort in finding out how and where she
should go. The mother would
benefit from attending rehabilitation
treatment for marijuana use.
f)
This makes the undersigned worried about the mother following
any court order, or it could be that the mother is using stronger
drugs than just marijuana. Collateral reference could not confirm the
mother's use of Tik, only about marijuana use. The mother
apparently
smokes marijuana outside the house or at other people's places. It
remains uncertain if she exposes P [....] to
her use of
marijuana. She is mostly described as calm when using marijuana.
g)
The undersigned
is of the view that the mother
has
a
dependency on marijuana, although she denied it in
totality. She uses it
a
few times per week. It is difficult to
determine how her marijuana use impacted P [....] . She was described
by some collateral
to be pre-occupied with other things, other than
the children. She however denied such a/legations. The mother would
benefit from
attending rehabilitation treatment for cannabis use
disorder. In any event, the use of Marijuana is not against the law.
h)
It was found during the investigation that the mother has
occasional episodes of intoxication at external places such as at
a
pub or
a
friend's house. P [....] was never spotted
with the mother when it was reported that she was intoxicated.
Someone else was
taking care of him when the mother went out to drink
and visit friends although there is no evidence to suggest she uses
alcohol
regularly daily for instance. The mother was however banned
from the local pub for behaviour other than intoxication which
involved
a
male person. The mother is in denial of having an
alcohol problem.
i)
There was also the allegation that the mother would leave P
[....] with other people and neglect her parental
responsibility.
The mother denied it and collateral references from
the maternal family confirmed that they only...
[51]
While
the Family Advocate undoubtedly plays an important role and
presenting evidence of the expressed views of the minor child,
in
this instance, the minor child is too young to give an expressed view
in terms of section 10 of the Children's Act. So does
the Family
Advocate not take sides of parties or attempt to usurp the court's
discretion.
(See
Van
der Berg
v
Le Roux)
[12]
[52]
The Family Advocate may have conducted a full investigation into the
minor child's best interests but did
not take into consideration the
serious allegations raised against the Respondent. Specifically, the
first-hand allegation from
Ms Michaela Hawhorne that the child was
beaten to the effect that the child had a donkey reaction (See
supporting affidavit, annexure
"E1" on page 111).
Furthermore, the evidence that the Family Advocate obtain from the
different collaterals about PH's
physical condition as well as his
developmental stages, that the Respondent never took serious. Bearing
in mind that the child
was diagnosed with Autism.
[53]
The Family Advocate's report understates the conduct of the
Respondent as shortcomings. The minor child has
no reason to suffer
due to the Respondent's shortcomings as a parent. The Respondent
admits to taking marijuana. The Respondent's
mother admits to the
same and even goes further that it keeps the Respondent calm. Indeed,
the Respondent may have been young when
she conceived the minor child
as she was 17 years at the time, but that does not mean her conduct
towards the minor child should
be pardoned by this Court or by the
Family Advocate.
[54]
ENGO made findings as far back as 2020 and recommended interventions,
but with no compliance to these recommendations,
nor any cooperation
from the side of the Respondent. The Respondent has shown at that her
parental skills are not suitable for
the minor child and has treated
the ENGO's recommendations as not important. Both the Respondent and
the Applicant may have their
shortcomings as parents, but the conduct
and behaviour of the Respondent certainly as stated in the papers,
prevails over how the
Applicant conducts himself in the
circumstances. The Respondent had as recently as 2020 attempted
suicide and was admitted at Pelonomi
Hospital. The Respondent admits
that her suicidal behaviour stems from her high school days. Indeed,
The Respondent needs intervention
which can continue while the minor
child is not in her care. The child does not need perfect parents,
but parents that are able
to do their best when it comes to the
interests of their minor child.
[55]
Having considered the above, I am inclined not to agree with the
recommendation of the Family Advocate as
in my view, the Respondent
is in dire need of professional assistance and guidance. The minor
child cannot be exposed to physical
abuse and neglect. Section
7(1)(I) clearly states as follows:
"the
need to protect the child from any physical or psychological harm
that may be caused by-
(i)
subjecting the child to maltreatment abuse, neglect,
exploitation or degradation or exposing the child to violence or
exploitation
or other harmful behaviour; or
(ii)
exposing the child to maltreatment, abuse, degradation,
ill-treatment, violence or harmful behaviour towards another person."
[56]
The Family Advocate's report further refers to the issue of the
Applicant returning to the United State of
America (USA) and not
having support in the USA. According to the Family Counsellor (page
533, Volume 2), the Applicant explained
to the Family Counsellor that
if he relocates, it will be in the future. The Family Counsellor
cannot assume that the child's relocation
is before Court. Indeed,
for the relocation of the minor child, the Applicant will have to
approach this court for such an order.
Oral submissions were made on
behalf of the Applicant by his Legal Representative, that he will
remain in the Republic of South
Africa (RSA) to ensure that the minor
child is properly taken care of. In my view, the Applicant could have
easily stayed in the
USA and not cared to
come to the RSA to bring
this matter before Court.
In any event, if the
Applicant
intends to relocate with the minor child, he has to approach Court
with a separate application for relocation. Therefore, the current
application does not deal with the relocation of the minor child.
[57]
The Applicant prays that the Respondent's
PRR
be
temporarily suspended, pending all investigations. In my view, that
is a drastic step, despite the Respondent's shortcomings.
The Court
cannot temporarily suspend the Respondent's
PRRs,
specifically
her right to excise contact with the minor child. With this, the ENGO
office has confirmed that it will provide a holistic
preventative and
early intervention program that will
inter alia
include:
parental guidance; monitoring the child's progress and attendance to
a therapy appointment. It is therefore not in the
minor child's best
interests to suspend or terminate the Respondent's parental
responsibilities and rights. Instead, the Respondent
must be allowed
contact with the minor child, albeit through ENGO and under
supervision. The supervised visits are informed by
the uncertainty
around the Respondent's conduct and behaviour. Furthermore, the
Respondent failed to protect the child from being
beaten by her
ex-partner in her presence. One such incident is noted on page 297:
"He started shouting and
PH
while he shook him.
Subsequent thereto,
he picked PH up by his wrist and threw him on
the bed, shouting at him that he would beat him to death
....."
(My Emphasis)
At
page 518, paragraph (f) volume 2 The Following is noted:" If C
[....] cried, her ex would take it out
on PH
"
[58]
The Respondent failed to protect the minor child from the physical
abuse of her then ex-partner though she
eventually left the
relationship. And this is the same Respondent who had threatened the
Applicant about the ex-partner adopting
the minor child without the
Applicant's consent.
COURT
APPLICATION
[59]
The Respondent's counter-application is basically to restore her
parental responsibilities and rights; the
return of the minor child
into her care; contribution towards her travelling costs to
Bloemfontein; an investigation into the removal
of the minor child;
an investigation into the fitness of the Applicant
to possess
a
firearm; and to bar
the Applicant from any further
litigation
without leave of the Court and notice to the office
of the Family Advocate.
[60]
The Respondent in the founding affidavit prayed for condonation for
the late filing of her founding affidavit.
As the matter involves a
minor child, condonation for the late filing was granted.
(Terblanche
v
Terblanche
)
[13]
[61]
The Respondent in her founding affidavit denied all the allegations
against her. The Respondent in turn alleged
that the Applicant
physically abused her, controlled her as well as subjected her to
emotional and financial abuse. The Applicant
in the opposing
affidavit towards the counter-application denies the allegations by
the Respondent. The Applicant contends that
the Respondent's
counter-application does not contain an affidavit supporting the
relief sought and further that the Respondent
failed to comply with
the court order dated 17 February 2022.
[62]
Having considered the main application and the serious allegations
raised therein, in my view the counter-application
ought to be
dismissed. Nor can this Court direct an investigation into the
Applicant's fitness to possess a firearm.
CONCLUSION
[63]
Section 7 of the Children's Act sets out the standard for the best
interest of a minor child. The Court is to have
due regard for these
provisions. The Act has in place provisions and programmes designed
to protect and strengthen family bonds.
However, in the end, the
interests of a minor child are paramount. Overtime, the courts have
prohibited unfair discrimination towards
the fathers, specifically
unmarried fathers, (the Applicant in this case). The judicial
preference for mothers as caregivers has
greatly diminished.
Furthermore, that "mothering" is a function that is not
necessarily inherent to women.
(Van
der Linde v Van der Linde).
[14]
[64
]
In
Ford
v Ford,
[15]
the
Court held that when deciding the best interest of the child the
court is not only to view the disruption of the child's relationship
with the mother any different from the disruption of the relationship
of the child with the father.
The
minor
child
has
been
exposed
to
the negative
conduct
of
the Respondent. The Respondent's friend confirmed how they left the
child alone at night and went out partying. That in itself
shows how
the Respondent viewed her parental responsibilities and rights.
Certainly, the Respondent was still young when she fell
pregnant, but
that should not be justification for neglect of the minor child.
[65]
The allegations that the Respondent used marijuana and alcohol and
failed to do the necessary test cannot
be disregarded by this Court,
including suicide attempts. On two occasions, this Court made orders
in favour of the Applicant and
this says a lot about the conduct of
the Respondent. It is in the best interest of the Respondent that she
subjects herself to
the programmes offered to her by ENGO. That she
attends counselling sessions with therapists for the suicide
attempts. The allegations
raised against the Applicant according to
the experts' report have never placed the minor child at risk. The
conduct of the Respondent
towards the minor child far outweighs the
conduct of the Applicant. The fact that the minor child was picked up
with his wrist
and thrown on the bed by the Respondent's ex-partner
and it happened in her presence, not even mentioning the beatings the
ex-partner
subjected the minor child to, the Court cannot flout the
conduct of the Respondent as sheer shortcomings. The Respondent's
conduct
is unacceptable.
[66]
The minor child at this stage need stability. The constant removal
from one parent to another parent is not
in the child's best
interests. The Applicant and Respondent need to realised that
the minor child is only three years and
their protracted litigation
is not helpful. Is not dispusted that they love their child, but
their conduct is undesirable, especially
the Respondent. The minor
child needs matured and well thinking parents and not parents that
are in constant conflict with each
other. Especially that the child
has been diagnosed with Autism. He will need more attention than the
normal child at his age.
[66]
The Court can therefore not accept the report of the Family Advocate
as indeed it was focused on the relocation
of the minor child to the
USA. Furthermore, the Family Advocate did not take into
considerations the serious allegations of neglect
and abuse of the
minor child. These cannot be regarded as short comings of the
Respondent. It's no secret that minor children in
our country on
daily basis are faced with abuse, neglect and other forms of harm, be
it from parents of family members. Therefore,
the Court cannot have a
wait and see approach when it comes to a minor child.
[67]
The Applicant in his prayers requested that a
curator ad /item
be
appointed for the minor child. It is in the child best interests that
from now onwards he is protected from any further litigations
and
assessments. All issues concerning the minor child would therefore be
dealt with by the curator.
[68]
In my view, it would be in the child's best interest that he remains
in the care and primary residence of
the Applicant and that the
Respondent exercises her parental responsibilities and rights
concerning contact through the assistance
of ENGO.
COSTS
[69]
The Applicant has not prayed for any costs order against the
Respondent. The Respondent on the other hand
has prayed for costs,
despite the fact that she is making use of Legal Aid, including her
travelling cost to travel to Bloemfontein.
I would therefore use my
judicial discretion and upon consideration of the family dispute. In
my view, both parents acted in the
minor child's best interest. It is
therefore proper that any costs incurred that each party pays their
own costs.
ORDER
[70]
Accordingly, the following order is made:
1.
The rule nisi issued on 17 February 2022 (as amended) be and is
hereby confirmed, subject
to the variations provided for in this
order;
2.
The minor child,
PH
("the minor child") shall remain
in the care of the Applicant, as provided for in the order of this
Court dated 17 February
2022 and in terms of section 23(1)(b) of the
Children's Act 38 of 2005 ("the
Children's Act"
;);
3.
In terms of
section 23(1)(a)
of the
Children's Act, the
Respondent
shal
l exercise contact with the minor child as follow:
3.1
Telephonic WhatsApp call contact every evening between 18h00 and
19h00.
3.2
To exercise supervised contact with the minor child at ENGO on
Monday, Wednesday and
Friday between the hours 14h00 till 16h00.
4.
Legal Aid is hereby ordered to appoint a
curator
ad
/item
for the minor child, who will have the following
specific powers and duties:
4.1
To represent the best interests of the minor child by advancing all
arguments for
and on behalf of the minor child relevant to this
matter, as well as related matters;
4.2
To represent the minor child in all matters of a legal nature, and to
ensure that
the minor child's best interests and wellbeing are upheld
at all times;
4.3
To consult with any professional and expert, or other persons who are
involved with
the families, the minor child, or the Respondent's
medical care;
4.4
To approach this Court to amend the power/duties of the
curator ad
litem;
4.5
To collaborate with the current appointment experts, including Dr
Nelson De Abreu
and Ms Zanelle Blignaut or any other medical
professional treating the minor child, and to facilitate their
involvement;
5.
The
curator ad /item,
with the assistance of medical
professionals, shall in addition have the following duties and
powers:
5.1
To monitor and report on the rehabilitation and therapeutic
-heating-of---t-he-Respondent;
5.2
To monitor and report on the commitment of Respondent to the minor
child;
5.3
To monitor and report on the commitment of the Respondent to her
psychological and
psychiatry therapy;
5.4
To stipulate how, when and where bonding therapy between the
Respondent and the minor
child is to take place, which must include
general parenting and an attachment program provided by the State or
non-governmental
organization, to restore the relationship between
the minor child and the Respondent, until such time that it is
restored to the
satisfaction of the
curator
ad litem
and the relevant involved experts;
5.5
To stipulate how, when and where and if contact between the
Respondent and the minor
child can take place;
5.6
Any party, including the
curator ad /item,
may approach this
Court on supplemented papers, to address the future exercise of
parental responsibilities and rights pertaining
to the minor child;
5.7
The Respondent shall have the right to approach this Court for the
placement of the
minor child in her care provided that she has
complied, to the satisfaction of the
curator ad /item,
with
the terms of this order, and in addition thereto with the following:
5.7.1
The Respondent has admitted herself into an accredited substance use
rehabilitation facility;
5.7.2
The Respondent has submitted herself to the treatment of a
psychiatrist on or before 31 December
2022 to receive treatment for
alcohol and narcotic dependence which will include psychiatric
treatment and medication;
5.7.3
The Respondent will have abided by any out-patient programmes and
recommendations thereafter
made by the relevant treating
professional/s ("the rehabilitation programme");
5.7.4
The Respondent will have fully cooperated with the rehabilitation
program for the full period
stipulated by the treating professional/s
and until otherwise determined by the
curator ad /item,
the
treating professional/s shall submit monthly reports of the
Respondent's progress and prognosis to the
curator ad /item
(who
shall serve on all parties and file same for the Court's benefit);
5.7.5
Unless the Respondent's medical professional/s advised otherwise, the
Respondent has diligently
complied with all medication regimens
prescribed by the treating professional/s and provided the curator ad
litem with proof thereof;
5.7.6
The Respondent has subjected herself to random alcohol and narcotic
testing at the
curator ad /item's
request, which the
Respondent shall attend to within 24 (twenty-four) hours of the
request being made by the
curator ad /item;
5.7.7
The Respondent has completed two comprehensive parenting courses, one
pertaining to general
parenting and the other as an attachment
programme to restore the parent-child bond; and
5.7.8
The Respondent abstains from the use of alcohol and other
psychoactive substances when the child
is in her presence unless
prescribed by the treating professional/s;
5.8
In such event, the
curator ad
/item
shall file a
report to all parties concerned as well as to this Court.
5.9
For this purpose, the curator ad litem and the relevant social
workers and treating
professional/s shall be entitled to interview
all the relevant and necessary parties, including the parties to this
application,
friends and family as well as the minor child and the
minor child and the Respondent's treating professional/s without
having to
obtain the parties' prior permission thereto.
5.10
The Respondent's Counter-Application is dismissed.
5.11
Each party to pay their own cost.
S.
CHESIWE
For
the Applicant: Adv.
J Ferreira
Instructed
by: Stander
& Associates
Attorneys REF: HJS/FS0205
BLOEMFONTEIN
For
the Respondent: Ms IL De Wet
Instructed
by: Legal Aid
South Africa BLOEMFONTEIN
[1]
Act 38 of 2005
[2]
At page 124
[3]
At page 129
[4]
(Supporting affidavit
of
Charlotte-Anne Potgieter
on
page 154)
[5]
Annexure "El" page 108 paragraph 10.2 of the Applicant's
supplementary
affidavit.
[6]
Annexure "SPH5'' page 182 of Volume 1.
[7]
Opposing affidavit paragraph 2.80 page 252
[8]
In paragraph 5 page 118
[9]
In paragraph 8 on page 109 of the Applicant's supplementary
affidavit.
[10]
[2004] 1 ALL 401 (CC)
[11]
In paragraph 11 on page 546
[12]
(2003) 3 ALL SA 599 (NC)
[13]
1992
(1)
SA-301
(W)
[14]
1996 (3) SA 509
(0)
at
514-515, Hatting J
[15]
2004 (2) ALL SA 396
(W)