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[2021] ZAGPPHC 229
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T.D.M v I.P.M (17112/2021) [2021] ZAGPPHC 229 (22 April 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
I
N
THE H
I
GH COURT OF SOUTH AFRICA
GAUTENG
D
I
VISION,
PRETORIA
1
71
1
2/2021
In
the matter between:
T[...]
D[...]
M[...]
Applicant
And
I[…]
P[…]
M[…]
Respondent
Del
i
vered.
This judgment was handed down electronically by circulation to the
parties' representatives by email. The date and time for hand
down is
deemed to be 10h00 on 23 April 2021.
JUDGMENT
STRIJDOM
AJ
Introduction
[1]
In this matter the
applicant seeks an urgent order in the following terms:
PART
A
1.1
That this Court dispenses with the forms and service provided for in
the
Uniform Rules of Court and that this matter be heard as one of
urgency in terms of the provisions of Rule 6(12)(a) of the Uniform
Rules of Court.
1.2
That the Respondent, with immediate effect, return S[...] I[...]
M[...]
to the care of the Applicant.
1.3
That Mrs Bronwyn Stollarz, alternatively Dr Lynette Roux, both
clinical
psychologists be appointed to, on an urgent basis, conduct a
forensic assessment of the minor children, A[...] I[...] M[...] and
S[...] I[...] M[...].
1.4
That the parties continue to exercise their parental responsibilities
and rights in the interim, and pending the finalisation of the
psychological report, in accordance- with the settlement agreement
concluded during September 2018, which was made an order of Court on
6 November 2018 .
1.5
That both the Applicant and the Respondent contribute in equal shares
to the costs and fees pertaining to the forensic assessment and
subsequent report as referred to in 3 above.
1.6
That part B of this application be postponed
sine die
and that
the Applicant be authorised to set this matter down for hearing on
the same papers supplemented where necessary and once
a report of the
clinical psychologist is available.
[2]
The Respondent has contested the application and seeks that the
application be dismissed with costs.
Urgency
[3]
Having considered the submissions made by counsels for the parties, I
was of the view that the matter is urgent and that the
Applicant will
not obtain substantial redress if she had to wait for the normal
cause laid down by the rules.
The Issue
[4]
The main issue in this matter is whether it would be in the best
interest of the children to grant the order in question .
The Salient
Facts
[5]
The Applicant and the Respondent were married on 7 July 2007 at Gorna
Aryahovitsa Bulgaria. The Respondent lived in South Africa
since 2002
and the Applicant moved to South Africa during September 2005 .
[6]
Two children were born of the relationship between the parties,
namely:
6.1
A[...] I[...] M[...], a son, born on […] (A[…]).
6.2
S[...] I[...] M[...], a daughter, born on […] (S[…]).
[7]
The minor children were born in South Africa and are both South
African citizens .
[8]
During 2017 the Applicant instituted divorce proceedings against the
Respondent. They were divorced on 6 November 2018 .
[9]
A
settlement
agreement
addressing
the
parental
responsibilities
and
r
i
ghts
of the
Respondent
was
concluded
during
September
2018
('the
settlement agreement')
and
was made
an order of
Court
on
6
November
2018
.
[1]
[10]
The settlement agreement ,
inter
alia,
stipulates
the following in respect of the Respondent and the parental
responsibilities and rights.
10.1
That the parents retain their parental responsibilities and rights in
respect of the care
and guardianship of the minor children (clauses
3.1 and 5);
10.2
That S[…]'s primary residence vests with the Applicant, whilst
Alexander's primary
residence vests with the Respondent (clause 3.2)
;
10.3
That the minor children will spend each weekend, public holidays, and
school holidays together
and that they shall have such contact with
their parents as stipulated in clause 4 of the settlement agreement.
[11]
Clauses 4.14 and 4.15 were included in the settlement agreement. In
terms of these clauses the parties agreed to:
11.1
'.. .
respect the wishes of the minor children as far as the
contact with
the other party
is
concerned, provided
that
the minor
children
have reached the
required
state of maturity and that such contact should not unreasonably
be enforced against the wishes of the respective child.
The
parties further
agree
to
rather engage
in
family
therapy
and mediation
to resolve any
issues as far as contact between
the minor children and
the
parents are concerned, if faced with
such
issues in the
future';
and
11.2
'
Contact with
the
minor
children shall be exercised in their best interest and
shall
create
the minimum
degree
of
disturbance
to
the
welfare,
health,
children's
routine,
education and
necessary
extramural
activities,
with both
parties
mutually
undertaking
not
to unfairly influence, convince, suggest,
promote, undermine and/or alienate the
minor childre
n
'
s
love, care affection for the other party.'
[12]
After
the
announcement
of the
National
Covid-19
Lock
Down,
the
Applicant on 24
March 2020
proposed to
the
Respondent
that the
minor
children
reside with
each
of the
parties
for
1 week
at
a time. The
Respondent
agreed to
this
proposal.
[2]
[13]
After the children resumed their schooling
the
parties carried on with the
above
arrangement and it
was
stated by
the
Applicant
that
it
worked
wel
l
for
the
most
part
.
[3]
[14]
During 12
to
19 March
2021,
A[...]
elected to stay with the
Respondent
and S[...] stayed with the Applicant. On Fr
i
day,
19 March 2021, the Applicant dropped S[...] off at the Respondent's
res
i
dence
to stay with the Respondent as
i
t
was his
week with
the minor children
.
[4]
[15]
The
appl
i
cant
stated that she had a good relationship
with S[...]
.
During
March 2021,
S[...]
wrote a
l
etter
to her, thanking
her for all
she has and
telling her how much she loved the Applicant.
[5]
[16]
The minor children were supposed to come to the Applicant on Friday,
26
March
2021
. This
did
however
not
transpire
and
they
are
still with
the
Respondent.
[6]
[17]
During a telephone conversation between the Applicant and S[...] on
24 March 2021, S[...] asked the Applicant if she could
stay with the
Respondent for another week. The Applicant enquired from her why she
wanted to stay another week. S[...] could not
give the Applicant an
explanation and became upset and emotional, shouted at the Applicant
and told her that she did not want to
talk to her. The Applicant
enquired from A[...] what was going on and he told her that S[...]
does not want to come to her.
[18]
The
Applicant's
attorney on
25 March
2021 sent
an
email
and
WhatsApp
to
the
Respondent,
however
the
Respondent
did
not
reply.
He
l
ater
had
a
telephonic discussion with the Applicant's attorney
.
[7]
[19]
On Monday 29 March 2021, the Applicant sent a WhatsApp message to
the
Respondent
informing
him,
inter
alia,
that
he
is acting
in breach
of their
agreement.
[8]
[20]
A[...] continuously told
the
Applicant
that
neither he
or
S[...]
wanted to see or speak to her.
[9]
[21]
The
Applicant
stated
that
A[...] told
her that
he was
scared
and
intimidated
by her. She
further
stated that
there are
times
when
the children are
naught
y
,
disrespectful or when they do
not listen,
and she is
necessitated to
address
their conduct. She stated that the fact that she reprimands them does
not mean
she
i
ntimidates
or abuse them.
[10]
[22]
The
Appl
i
cant
stated
that
she
does not
seek
primary
residence
of A[...]
at this stage as she fears that should he be forced to stay with her
now that
i
t
will cause a complete break in
their
relationship.
[11]
[23]
The Respondent stated in
his
answering
affidavit
that
A[...]
refused
to
go
back to the
Applicant because
he was
assaulted
by the
Applicant.
He
further
stated that
both minor children often complain of the
l
iving
conditions while in
the
Applicant's care in so far as they feel that she does not love them,
that she
spends
too
much
time
with her
new partner and his
chi
l
d,
that she
does not
spend
quality time
with
them in
so
far as
she is
either busy
at
work and
upon
her
return home
l
ate
in
the
evening she starts
drinking on
her
own and
does not
pay any attention
to
the minor
children.
[12]
[24]
The
Respondent
stated
that
on the
1
9th
March 2021
when
S[...] was
brought
back to him
she was
very
emotional
and she was
crying.
When the Respondent asked her
why she is
crying she
answered that her mother did not love her anymore and
that she is
afraid of
the
Applicant.
[13]
Since
that
day S[...]
refused
to go back
to
the
Applicant.
[25]
The
Respondent denies that he ever refused to let S[...] go back to
the
Appl
i
cant.
He also stated that both minor children have complained previously of
the physical and psychological abuse to which
they have
been subjected by
the
Applicant.
[14]
[26]
I
t
is
the
Respondent's submission that there must be a valid reason why both
minor children do not want to see the Applicant
currently
and that it has
nothing
to
do
with his
influence
over
them but
that
their
reaction is
caused
solely
by
the
Appl
i
cant's
own
i
nappropriate
conduct.
[15]
[27]
During the proceedings in this matter I was requested by counsel for
the Respondent as agreed upon by counsel for the Applicant
that the
Court must have a discussion with the minor children in chambers.
[28]
I had a short discussion with the minor children separately in the
presence of both counsels.
[29]
I was informed by A[...] that the relationship with the Applicant is
not very good and that he prefers to stay with his father.
He
informed me that he was not influenced by his father to make that
decision. He further informed me that he did not influence
S[...] to
stay with the Respondent.
[30]
I was also informed by S[...] that she wants to stay with the
Respondent because she does not want to be separated from
her
brother. She said that her mother treated her well and that she loves
her very much. She further said that her mother loved
her boyfriend's
daughter more and spends more time playing with the boyfriend's
daughter who is apparently 8 years old. She further
informed me that
she was not influenced by her father or her brother to stay with her
father.
[31]
It was submitted by counsel for the Applicant that a proper case has
been made out to order the Respondent , with immediate
effect, to
return S[...] to the care of the Applicant and that the parties
are to continue to exercise their parental responsibilities
and
rights, in the interim, and pending the finalisation of the report of
Prof G.M Spies (A Social Worker), in accordance with
the settlement
agreement concluded during September 2018 , which was made an order
of Court on 6 November 2018.
[32]
It was submitted by counsel for the Respondent that it would be in
the best interest of the children to stay with the Respondent
and
that the minor children visit the Applicant every alternative weekend
pending the report of Prof G.M Spies.
[33]
Both counsels agree that it would be more appropriate to obtain a
Social Worker report and not a report of a Clinical Psychologist.
It
was further agreed upon that a report will be obtained from Prof G.M
Spies and that the report will be available by the end
of June 2021.
[34]
Prof Spies will be appointed on an urgent basis to conduct a forensic
assessment of the minor children in order to investigate
the best
interest of the minor children in so far as it pertains to the minor
children's primary residence, the Applicant's and
Respondent's
parental responsibilities and rights, in respect of the minor
children's primary care and guardianship, if and how
the Applicant
and/or Respondent must exercise specific parental responsibilities
and rights in so far as it pertains to the Applicant
and/or the
Respondent's contact rights and to make recommendations as to what
steps must be taken by the Applicant and/or the Respondent,
in order
to rebuild the bond between the Applicant and the minor children to
restore any break in their relationship that might
have occurred .
The Best Interest of the
Child
[35]
It is common cause that S[...] 's primary residence vests with the
Applicant whilst Alexander's primary residence vests with
the
Respondent.
[36]
Section 28(2) of our Constitution provides that
'A
child's best interest are of paramount importance in every matter
concerning the child.'
[37]
In
Van
Deijl
v Van
Deijl,
[16]
it was held that:
'The
interest of the minor means the welfare of the minor and the term
"welfare" must be taken in its wildest sense to
include
economic, social and moral and religious considerations , emotional
needs and the ties of affection must also be taken
into
consideration. Emotional needs and the ties of affection must also be
taken into account and in the case of older children,
their wishes in
the matter cannot be ignored.
[38]
Section 7(1) of the Children's Act lists 14 factors that must be
taken into consideration. See also Section 8.
[39]
I
t
was
stated
in
AB
and
Another
v
Minister
of
Social Development
[17]
that
'All
of
the
14
factors
must
be
considered
i
n
totality
in
each
particular
chi
l
d's
unique
circumstances .'
[40]
Contact is
viewed as a
right of a child rather than the parent.
[18]
[4
1
]
A Court must attach such weight to each of these factors as
i
t
deems fit and,
u
l
timately,
reach a
conclusion based on a value judgment
regarding
what is in
the child's
best interest in
the
particular case.
[19]
[42]
The
Court
is
determining what
is in the
best
interest
of the
child. The
Court is
not
adjudicating
a
dispute
between antagonists
with
conflicting
interests
in order to resolve their discordanc
e
.
The Court's concern
is for the
child
.
[20]
[43]
In my view S[...] has been deprived of her right to have
contact with the Applicant for an extended period. It is in
the best
interest of S[...] to have a good relationship with her mother
and father. Although it is her wish to stay with
the father, due
consideration was given to her view, having regard to her age,
maturity and stage of development. S[...]
is now 9 years old
and in grade 4.
[44]
Having considered the provisions of Section 7 of the Children's Act,
I am of the view that it would be in the best interest
of S[...] to
return to the care of the Applicant and that the parties are to
continue to exercise their parental responsibilities
and rights, in
the interim, and pending the finalisation of the forensic report of
Prof G.M Spies (Social Worker) in accordance
with the settlement
agreement which was made an order of Court on 6 November 2018.
[45]
I am also of the view that part B of the application must be
postponed
sine
die
and that the Applicant be
authorised to set down this matter down for hearing on the same
papers supplemented where necessary and
once a report of the Social
Worker , Prof G.M Spies is obtained.
[46]
In the result, the draft order marked X is made an order of Court.
STRIJDOM
AJ
ACTING
JUDGE OF THE
HIGH
COURT
GAUTENG
DIVISION
PRETORIA
Date
of hearing: 20 April 2021
Date
of judgment: 22 April 2021
Appearances:
For
the Applicant: Adv H.J Sasson
Instructed
by:
Pennells Attorneys
For
the Respondent:
Instructed
by:
Marina Naydenova Attorneys
[1]
Vide:
Annexures
"TDM3a"
and
"TDM3b"
Caselines
-
p
004
-
5
to
6.
[2]
Vide:
Founding
Affidavit;
Caselines
p
003
-
13
para 10.4.
[3]
V
i
de:
Founding
Aff
i
davit;
Casel
i
nes
p
003
-
1
3
para
10.5
[4]
Vide:
Founding
Affidav
i
t;
Caselines
p
003
-
1
4
para
1
2.1.
[5]
Vide:
Annexure
"TDM4":
Caselines p
004
-
22.
[6]
Vid
e
:
Founding
Affidav
i
t;
Case
l
ines
p
003
-
16
para
12.3
[7]
Vide:
Founding
Affidavit;
Caselines
p
003
-
17
para
13.1.
[8]
Vide:
Founding
Affidavit;
Caselines
p
003
-
21 para
16.2
[9]
Vide:
Founding
Affidavit;
Caselines
p
003
-
21
para 16.3.
[10]
Vide:
Founding
Affidavit;
Caselines p
003
-
27 para
19.4.
[11]
Vide:
Founding
Affidavit;
Caselines
p
003
-
34 para 22
.2.
[12]
Vide:
Answering
Affidavit;
Caselines
p
011
-
19
para
79.
[13]
Vide:
Answering
Affidavit;
Caselines
p
011
-
20
para
83.
[14]
Vide:
Answering
Affidavit;
Caselines
p
011
-
23 para
102.
[15]
Vide:
Answering
Affidavit;
Caselines
p 011
-
24 para
1
08.
[16]
1
966
(4) 260 (R) at 261
H.
[17]
2017 (3) SA 570
CC para [195].
[18]
T
v
M
1
997
(1)
SA
54
(A)
at
517 I
-
J
.
[19]
K
v M
2007
(4) All SA 883
(E),
P
v P
2007
(5) SA
94
(SCA).
[20]
McCall
v McCall
1
994
(3) SA 201
(CPD).