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[2021] ZAGPJHC 629
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Reid v Gorfil In re: Gorfil v Reid (20/40944) [2021] ZAGPJHC 629 (17 August 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
20/40944
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
17/08/2021
In
the matter between:
REID,
ROBERT CLIVE
(Identity
No.
[....])
Excipient
and
GORFIL,
CANDICE LYN
(Identity
No.
[....])
Respondent
In
re:
GORFIL,
CANDICE LYN
(Identity
No.
[....])
Plaintiff
and
REID,
ROBERT CLIVE
(Identity
No.
[....]
Defendant
JUDGMENT
ENGELBRECHT,
AJ:
Introduction
and background
1.
Ms Candice Lyn Gorfil (Ms Gorfil) has
instituted action for the payment of amounts allegedly due to her
under an agreement allegedly
concluded with Mr Robert Clive Reid (Mr
Reid). The agreement, which is attached to the Particulars of Claim
(Particulars), purports
to regulate certain parental rights and
duties, including Mr Reid’s obligation to pay maintenance and
school fees for a minor
child borne of a romantic relationship
between the parties after their separation. The agreement is
unsigned, and Ms Gorfil essentially
pleads that the written agreement
is a recordal of an oral agreement between the parties, which
agreement was given effect to by
reason of the implementation of its
terms. Her claim is for payment of arrear maintenance and school fees
as provided for in the
agreement.
2.
In this application, Mr Reid takes an
exception against the Particulars on the basis that they do not
disclose a cause of action.
Mr Reid’s case, as presented by Ms
Georgiou, hinges on sections 33 and 34 of the Children’s Act 33
of 2005 (Children’s
Act). The submission is that section
34(1)(a) of the Children’s Act is peremptory, requiring a
parenting plan to be in writing
and that, where such a parenting plan
is to be made an order of court, certain requirements must be met.
The unsigned agreement,
so says Mr Reid, does not comply with these
requirements, although purporting to be a parenting plan as
contemplated in section
33(3). In circumstances where the “
parenting
plan”
does not comply with the
formalities, it is his submission, through Ms Georgiou, that the
agreement is not enforceable. For this
reason it is submitted that
the Particulars do not disclose a cause of action. He asks for the
exception to be upheld, for the
Particulars to be set aside and for
Ms Gorfil to be granted leave to deliver amended Particulars within
20 days of the grant of
the order sought.
3.
Ms Gorfil opposes the exception. Ms De
Wet SC, who appeared for Ms Gorfil, called upon the Court to
interpret and apply section
34 of the Children’s Act in a
manner that is consistent with the constitutionally enshrined rights
of children as given expression
to in the Children’s Act, and
to afford section 34 a meaning that is (i) constitutionally
compliant, (ii) coherent with the
remaining provisions of the
Children’s Act; and (iii) consistent with provisions in other
statutes such as the Maintenance
Act 1999 of 1998 (Maintenance Act).
It is submitted that such an interpretation and application of
section 34 will lead to the
conclusion that Mr Reid is incorrect in
his position that no cause of action can be sustained on the basis of
the agreement on
which Ms Gorfil relies.
4.
The debate between the parties calls
upon this Court to consider the relevant constitutional and statutory
provisions in order to
form a view whether Mr Reid is correct in his
assertion that Ms Gorfil cannot sustain a cause of action on the
agreement as pleaded.
The starting point, as I see it, must be the
provisions on which Mr Reid relies.
The
Children’s Act
5.
Section 33(1) of the Children’s
Act allows co-holders of parental responsibilities and rights in
respect of a child to agree
on a “
parenting
plan”
to determine “
the
exercise of their respective responsibilities and rights in respect
of the child”.
The language of
the provision is not peremptory.
6.
Under section 33(2), such co-holders of
parental responsibilities and rights must seek to come to agreement
on a “
parenting plan”
before coming to Court, in cases where they are experiencing
difficulties in excercising their rights and responsibilities.
7.
Section 33(3) provides that a parenting
plan “
may determine any matter
in connection with parental responsibilities and rights”,
including (i) where and with whom the child is to live; (ii) the
maintenance of the child; (iii) contact between the child and
the
parties and others; and (iv) schooling and religious upbringing of
the child.
8.
Sections 33(4) and (5) set as
requirements for a parenting plan that (i) it should comply with the
best interests of the child and
(ii) the assistance of or mediation
through certain qualified parties identified in the provision.
9.
Section 34(1)(a) of the Children’s
Act, under the heading “
Formalities”,
requires a parenting plan to be in writing. In accordance with
section 34(1)(b), such a plan “
may
be registered with a family advocate or made an order of court”
.
Section 34(2) prescribes the procedure for an application where a
parenting plan is proposed to be made an order of court and
section
34(3) sets out further requirements where such an application is
made. The amendment or termination of a parenting plan
that was made
an order of court is regulated by section 34(5).
Discussion
10.
In
accordance with the guidance of the Supreme Court of Appeal (SCA) in
Natal
Joint Municipal Pension Fund v Endumeni Municipality,
[1]
section
34 of the Children’s Act must be
interpreted
by way of an objective process that leads to a “
sensible”
meaning. Context must be borne in mind and the provision must be read
in light of the statute as a whole, and the circumstances
attendant
upon its coming into existence.
[2]
11.
When one reads sections 33 and 34 of the Children’s Act,
it is very clear that there is no duty placed on co-holders of
parental
rights and obligations to enter into a written agreement:
this much is evident from section 33(1), which employs permissive
language.
Indeed, this conclusion is reinforced by section 33(2),
which implores parties that are experiencing difficulties in
arranging
their parental rights and responsibilities to avoid an
approach to court by coming to an agreement. In circumstances where
the
parties are so seeking to avid an approach to court, provision is
made for intervention by a family advocate, social worker or
psychologist, or another “
suitably qualified person”
.
Section 33(2) presupposes that co-holders of parental rights and
responsibilities may arrange such duties and responsibilities
informally. It is when such informal arrangements break down that the
need for a more formalised parenting plan arises, as a precursor
to
an approach to Court.
12.
Section 34(1)(b) allows for a parenting plan to be registered
with a family advocate or to be made an order of court. The provision
is not peremptory, but it seems sensible that where disagreements
between the co-holders of parental rights and responsibilities
arose
in the past, this approach is appropriately followed. The requirement
in section 34(1) that a parenting plan be in writing
forms part and
parcel of the provisions regulating the registration of a parenting
plan with a family advocate, or making the parenting
plan an order of
Court: the procedural requirements for such registration or
application require the formality of a written agreement.
13.
Does that mean that any oral agreement relating to maintenance
(one of the matters that may competently be regulated in a parenting
plan as envisaged in section 33(3) of the Children’s Act)
cannot be given effect to, and ought to be considered
ab initio
void and unenforceable because it was not reduced to writing? The
answer must be no.
13.1.
The first basis for such a conclusion is that section 33(1) is
not peremptory, which means that matters such as maintenance and
school fees may be regulated without the parties resorting to drawing
up a parenting plan. And such arrangements must surely be
capable of
being enforced even if they are made orally (even though it may be
desirable in the interests of certainty and avoiding
litigation to
reduce such arrangements to writing).
13.2.
The second reason for such a conclusion is to be found in
section 6(1)(c) of the Maintenance Act, which implicitly recognises
as
valid either a “
verbal or written agreement in respect of
maintenance obligations”
as basis for complaints relating
to maintenance under that statute. In other words, a verbal agreement
in respect of maintenance
can be given effect to by invoking the
procedures of the Maintenance Act. The question begs: if an oral
agreement that includes
arrangements on maintenance can be given
effect to in the Maintenance Court, how can it be held by this Court
that maintenance
arrangements must be in writing in order to be
capable of being enforced, merely by virtue of the fact that such
arrangements ostensibly
form part of an agreement that more broadly
arranges parental rights and responsibilities.
14.
Ms Georgiou argued that, in the present case, the agreement
attached to the Particulars recognises that the parties had engaged
difficulties in arranging the parental rights and responsibilities,
as envisaged in section 33(2), and for that reason, the requirement
of a written parenting plan as envisaged in section 34(1)(a) had been
activated.
15.
I
read section 33(2) differently. The reason for the legislature
requiring the parties to seek to agreement on a parenting plan
is to
avoid an approach to court, or to allow for an approach to court on
an agreed basis. That understanding is consistent with
the general
principle expressed in section 6(4)(a) of the Children’s Act
that “
an
approach which is conducive to conciliation and problem-solving
should be followed and a confrontational approach should be avoided”
.
As Goosen J pointed out in
PD
v MD,
[3]
“
Central
to the concept [of a parenting plan] is the recognition that it is
generally in the best interests of children that conflict
and
confrontation between parents regarding the care and parenting of
children is to be avoided, and that, where disputes regarding
the
exercise of parental responsibilities arise, such disputes are to be
resolved by mediation as far as may be possible, and
that courts
be resorted to only where such disputes cannot otherwise be
resolved”.
[4]
16.
Now, if parties are experiencing such difficulties but they
are able to resolve them without resorting to mediation or an
approach
to Court (for example by coming to an oral agreement that is
then given effect to), why should they then proceed to come to an
agreement on a parenting plan, formally so called? And if they have
resolved their issues amicably without concluding a written
agreement, why should one of the parties be entitled to say the
agreement is void and unenforceable merely by reason of the fact
that
it was not reduced to writing or, as in the present case, not signed?
If the plain reading of section 34(1) results in the
conclusion that
a parenting plan must be in writing, then the term “
parenting
plan”
, which is undefined in the statute, must be more
restrictively interpreted. But this Court need not reach there, for
the reasons
already explained.
17.
I accept Ms Georgiou’s argument that, as a general
principle, reducing agreements to writing and signing them serve the
purpose
of certainty. It certainly avoids litigation. But that is a
very different point from asserting that a party to an oral agreement
is precluded from relying on such an agreement if there is no
requirement in law that agreements of the type concerned be in
writing
and signed.
18.
We are not here concerned with a contract for the disposal of
immovable property; we are concerned with the payment of maintenance
by a person who in terms of section 15(3) of the Maintenance Act has
a maintenance duty. In the absence of a provision that demands
that
maintenance arrangements be reduced to writing in agreements that are
duly signed and executed, the failure to reduce an agreement
on
maintenance to writing or to sign such an agreement cannot be
considered to be an absolute bar to a party relying on such
agreement.
I find myself in agreement with Ms De Wet’s
submission that, if the intention of the legislature were to visit
nullity in
the case of non-compliance with section 34(1)(a), it would
have said to in express terms. It did not.
19.
Overall,
this Court must be guided by the constitutional protection of the
rights and best interests of the child in section 28
of the
Constitution. The Children’s Act is the statute that was passed
to give effect to that right, as its Long Title and
the objects
contained in section 2 make plain. To insist that a parenting plan
that has been reduced to writing as contemplated
in section 34(1) can
be the only form of agreement on the rights and responsibilities of
co-holders of such rights and responsibilities
that can be enforced,
would unduly restrict in the rights and interests of children who are
the beneficiaries of oral agreements
that include arrangements on
maintenance. After all, upon a proper construction of the Children’s
Act as a whole, there is
no limitation on how co-holders of parental
rights and responsibilities may arrange their affairs. I am in
agreement with the
Court in
TC
v SC
[5]
that “when Courts are dealing with children care must be taken
that the interests of minors are not ‘
held
to ransom for the sake of legal niceties’
or ‘
mechanically
sacrificed on the altar of jurisdictional formalism.’”
[6]
20.
It is no answer to suggest that the solution for a party in
the position of Ms Gorfil is to approach the Maintenance Court. The
question in an exception such as this is not whether the plaintiff
has an alternative remedy, it is whether, on any interpretation
of
the Particulars, the plaintiff would be unable to sustain a cause of
action. That is not a finding that this Court can make,
for the
reasons I have set out hereinabove. It would not be in the interests
of justice to foreclose reliance on an agreement.
21.
I find that Mr Reid has not made out a
case that, on any possible reading of the particulars, no cause of
action can competently
be made out.
22.
In the circumstances, I make the
following order:
“
The
exception is dismissed with costs
”.
MJ
ENGELBRECHT
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines. The
date for
hand-down is deemed to be 17 AUGUST 2021.
Date
of hearing:
13 August 2021
Date
of judgment:
17 August 2021
Appearances
For
the excipient:
Adv S Georgiou
Instructed
by:
For
the respondents: Adv A De Wet SC
Instructed
by:
[1]
[2012] 2 All SA 262
(SCA) at paras 18 - 19.
[2]
Id
.
[3]
2013
(1) SA 366
(ECP)
[4]
At
para 24.
[5]
2018
(4) SA 530 (WCC).
[6]
At
para 25. Footnotes omitted.