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[2021] ZAGPPHC 353
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T.D.M v I.P.M (17112/2021) [2021] ZAGPPHC 353 (23 April 2021)
SAFLII
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
17112/2021
REPORTABLE:NO
OF INTEREST TO OTHER
JUDGES:NO
DATE:23.4.2021
In the matter between:
T
D
M[…]
Applicant
And
I
P
M[…]
Respondent
Delivered.
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 l 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, AIM and SIM
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
1.5 6
November 2018. 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
AIM, a son, born on [….] (AIM).
6.2
SIM, a daughter, born on […] (SIM).
[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 rights 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 SIM’s primary residence vests with the Applicant, whilst
AIM’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 children’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 well
for the
most
part.
[3]
[14]
During 12
to 19 March 2021, AIM elected
to
stay
with
the
Respondent and S[…] stayed with the Applicant. On Friday, 19
March 2021, the Applicant dropped SIM off at the Respondent’s
residence to stay with the Respondent as it was his week with the
minor children.
[4]
[15]
The
applicant stated that she had a good relationship with SIM. During
March 2021, SIM wrote a letter 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 SIM on 24
March 2021, SIM 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. SIM 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 AIM what was going on and he told
her that SIM 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
later 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 Alexander told her that he was scared and
intimidated by her. She further stated that there are times
when the
children are naughty, 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
intimidates
or abuse them.
[10]
[22]
The
Applicant stated that she does not seek primary residence of
Alexander at this stage as she fears that should he be forced to
stay
with her now that it will cause a complete break in their
relationship.
[11]
[23]
The
Respondent stated in
his
answering affidavit that Alexander
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
living 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
child, that
she
does
not
spend
quality time with them
in so
far
as she
is
either
busy at
work and
upon her return home late 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 19
th
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
Applicant.
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]
It 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
Applicant’s own inappropriate 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 […] 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 Skyla 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 A[…]’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]
It was
stated in
AB
and Another v Minister of Social Development
[17]
that
‘All
of the 14 factors must be considered in totality in each particular
child’s unique circumstances.’
[40]
Contact is
viewed as a right of a child rather than the parent.
[18]
[41]
A Court
must attach such weight to each of these factors as it deems fit
and,
ultimately, 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 discordance. 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 […]
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
Appearance:
For the
Applicant:
Adv H.J Basson
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]
Vide: Founding Affidavit; Caselines p 003 - 13 para 10. 5
[4]
Vide: Founding Affidavit; Caselines p 003 - 14 para 12.1.
[5]
Vide: Annexure “TDM4”; Caselines p 004 - 22.
[6]
Vide: Founding Affidavit; Caselines 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
108.
[16]
1966 (4) 260 (R) at 261 H.
[17]
2017 (3) SA 570
CC para [195].
[18]
T v M
1997
(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
1994
(3) SA 201
(CPD).