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[2022] ZAFSHC 356
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J.G.M v I.H.M and Another (5334/2021) [2022] ZAFSHC 356 (20 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
number: 5334/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
J
[....] G [....] M
[....]
Applicant
And
I
[....] H [....] M
[....]
1
st
Respondent
THE
FAMILY ADVOCATE, BLOEMFONTEIN
2
nd
Respondent
HEARD
ON:
15 DECEMBER 2022
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 14h00 on 20 December 2022.
[1]
In this urgent application, the applicant seeks an interim order to
exercise supervised
sleepover contact with
his
minor daughter IM (‘the minor child’) aged 14 years old
for the period 23 December 2022 to 29 December 2022 at
Victoria Bay in Cape Town. He also seeks an order that the second
respondent
(‘the family advocate’) be directed to
investigate and make recommendations regarding the best interests of
the child
pertaining to alternative weekends and long school holidays
sleepover contact with the minor child under adult supervision.
[2]
The minor child was born on 23 October 2008 approximately three years
before the applicant
and the first respondent were married. The
parties are presently embroiled in an acrimonious divorce and rule
43
[1]
proceedings instituted by
the first respondent as a result, they have been living apart since
26 March 2019 and the first respondent
has been the primary
care-giver of the child since then.
[3]
It is the applicant’s case that the application is urgent
because: the first
respondent has refused to allow him to exercise
sleepover contact with the child for the upcoming vacation in Cape
Town without
a valid reason or even a counter suggestion. The
sleepover contact has been recommended by the educational
psychologist, Dr Zendre
Swanepoel who conducted an investigation on
the aspect of the applicant’s contact rights as requested by
both the applicant
and the first respondent.
[2]
The first respondent is apparently of the view that due the pending
criminal proceedings against the applicant, he is not competent
to
have sleepover contact with the minor child and this is despite the
fact that for over two years after the allegations surfaced,
the
first respondent did not deny him contact with the minor child she
even allowed him to sleep with the minor child in the same
room in
their guestroom, to take the child to school and extra classes,
attend her sporting activities and to also assist her with
home-work.
In fact, from 10 September 2021 he had contact with the minor child
on every weekend for sleepovers until he was incarcerated
on 15
September 2021 after his bail was revoked. The situation has not
changed since then.
[4]
The applicant admits that there has been a delay in launching this
application, he
explains that there is a good reason to delay coming
to court in that, he was advised by his attorneys to first try and
resolve
the matter amicably with the first respondent before
approaching the court. The application was only launched when it
became clear
that the first respondent was adamant in denying the
applicant his rights to have sleepover contact with the child.
Annexures “FA2,”
“FA3” and “FA8”
are copies of the correspondences between the parties’ legal
representatives dated
2 November 2022 and 4 November 2022,
respectively.
[5]
The applicant states that he has already purchased the flight tickets
for the minor
child therefore, he cannot obtain suitable redress at a
hearing in due course as at that time the horse would have bolted.
[6]
On the other side, it is the first respondent’s case that this
application
stands to fail on the ground of lack of urgency or that the urgency
is self-created for the reason that, t
he applicant has
launched an urgent application based on a psychologist’s report
which he received over three (3) months ago
on 16 September 2022,
since then he has done nothing in terms of approaching the court to
enforce his rights in that regard. Furthermore,
there is nothing in
the applicant’s papers to indicate that if the relief sought is
not granted namely, if the minor child
does not spend the holidays
with the applicant her emotional being will be affected.
[7]
I am in agreement with the first respondent’s contentions. Rule
6(12) allows
for the abridgment of the court rules but it is not
there merely for the taking.
[8]
In
East
Rock Trading 7 (Pty) Limited and Another v Eagle Valley Granite (Pty)
Limited and Others
[3]
the court held that w
here
there has been a delay in launching an urgent application, it is for
the applicant to
“
explain
the reasons for the delay and why despite the delay he claims that he
cannot be afforded substantial redress at a hearing
in due course. I
must also mention that the fact the Applicant wants to have the
matter resolved urgently does not render the matter
urgent. The
correct and the crucial test is whether, if the matter were to follow
its normal course as laid down by the rules,
an Applicant will be
afforded substantial redress. If he cannot be afforded substantial
redress at a hearing in due course then
the matter qualifies to be
enrolled and heard as an urgent application. If however despite the
anxiety of an Applicant he can be
afforded a substantial redress in
an application in due course the application does not qualify to be
enrolled and heard as an
urgent application
.”
[9]
The delay of three months is extreme. The applicant has
not even made an attempt
to
explain the delay from the date of receipt of the psychologist’s
report,
16 September 2022 to the date of enrolling this
application on the urgent court roll on 15 December 2022. The delay
cannot be countenanced.
[10]
As far as t
he
applicant’s apprehension that he cannot be afforded a
substantial redress in due course is concerned, it is undisputable
that
the issue relating to sleepover contact with the
minor child requires an investigation by the family advocate. In the
applicant’s
founding affidavit, paragraph 15 (9.3 of the
applicant’s rule 43 opposing affidavit) he avers that he had
requested that
the minor child be evaluated by a psychologist and in
the notice of motion, prayer 3 thereof he asks for an order that the
family
advocate must conduct an investigation in this regard.
[11]
It does not end there. It is the applicant’s case that in the
report, the sleepover contact
with the minor child under adult
supervision, is recommended.
[12]
The psychologist’s report does not bear out these contentions.
See the indexed pages 37
to 38 at paragraphs 11.2 to 11.5. The
psychologist has not only alluded to the gravity of the offences the
applicant was charged
with but also the fact that when the minor
child visits the applicant she should not sleepover and that the
issue of sleepover
contact under adult supervision should be
investigated. It is also important to note that the psychologist’s
report was compiled
before the applicant was convicted.
[13]
In attempt to remedy this anomaly, during the hearing of the matter
Mr Louw, counsel for the
applicant handed up a two (2) page document
from the bar stating that it was a supplementary report compiled by
the psychologist
pursuant to the applicant’s conviction and it
reinforces the applicant’s contention that he may exercise
sleepover
contact with the child under adult supervision. It was also
argued that the minor child has expressed her wish to spend the
holidays
with the applicant, she even wrote him a letter in that
regard.
[14]
It must be borne in mind that the right of the non-custodial parent
to exercise contact with
a child is not absolute,
the
court adjudicates the issue on the basis of whether the contact would
be in the best interest of the child and not the ‘wants’
of the child or those of the non-custodial parent.
[4]
[15]
The applicant’s belated
supplementary report does not assist this court in its quest to
determine the best interest of the
minor child in relation to
sleepover contact. Despite the psychologist’s conclusions in
the initial report that the issue
of sleepover contact under adult
supervision should be investigated, no investigation has been carried
out since then. Furthermore,
in terms of section 10 of the Act, the
court must give due consideration to the views expressed by the minor
child when determining
whether the suggested contact regime will suit
the minor child’s best interests.
[16]
Bizarrely, in the supplementary report, an assertion is made that the
minor child would be able
to sleepover with the applicant during the
holidays and this is despite the fact that there is no indication in
this report that
the minor child was interviewed on this aspect and
that these are her views. The court cannot rely on an expert’s
opinion
which is not substantiated by a factual basis.
[17]
It is for these reasons above that I conclude that no proper case has
been made out for the granting
of the order sought by the applicant.
The application ought to fail.
[18]
There is no reason why the costs should not follow
the result.
[19]
In the premises, I make the following order
:
1.
The application is dismissed with costs.
N.S.
DANISO, J
APPEARANCES:
Counsel
on behalf of the applicant:
Adv. Louw
Instructed
by:
Hill, McHardy & Herbst
BLOEMFONTEIN
pieter@hmhi.co.za
Counsel
on behalf of the first respondent:
Adv.
Van der Merwe
Instructed
by:
Honey Attorneys
BLOEMFONTEIN
l
voigt@honeyinc.co.za
[1]
Of the Uniform Rules of Court.
[2]
The psychologist’s report is attached to the applicant’s
founding affidavit as Annexure “FA1.”
[3]
(11/33767) [2011] ZAGPJHC 193(delivered on 23 September 2011) paras
5 to 9.
[4]
See section 28(2) of the Constitution Act No, 108 of 1996;
McCall
v McCall
1994
(3) SA 201
(CPD).