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[2021] ZAGPJHC 448
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B v B (38184/2021) [2021] ZAGPJHC 448 (14 September 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
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO: 38184/2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
In the matter between:
JB
Applicant
(Id Number [....])
And
DHB
Respondent
(Id Number [....])
JUDGMENT
MAKUME,
J
:
[1]
This matter is about access and contact rights concerning two minor
children T[....]
and B[....].
[2]
The Applicant is the step-father to T[....] and a biological father
to B[....] who
is aged 3 years. T[....] is older than B[....].
The Respondent is the biological mother to both the minor children.
She lives with them in Alberton, Gauteng since the year 2017.
[3]
The Applicant is a business consultant who lives and works in Cape
Town since the
year 2014. The Applicant and the Respondent are
in the process of a divorce and had been living apart since 2017 when
the
Respondent left the common matrimonial house in Cape Town and
took up residence with her parents in Alberton.
[4]
It is common cause that since the separation the Applicant has
visited the minor children
on a quarterly basis during the year 2018
to 2020 and only visited the children in January and June in 2021.
[5]
After the last visit that happened in and around June 2021 the minor
child B[....]
reported to the Respondent on the 7
th
June
2021 that the Applicant had “touched her fanny” and that
it was sore.
[6]
On the 18
th
June 2021 Dr Pat Dorman who had conducted a
medical examination on the minor child B[....] reported to the
Respondent that she
believes that B[....] was raped though she did
not say who the perpetrator was.
[7]
The incident was reported to the South African Police and a case of
rape or child
abuse is presently being investigated. A social
worker Mrs Jooste was enlisted and she has had sessions with the
minor child
B[....].
[8]
The Applicant says he has also made a statement to the Police and
denies having ever
sexually abused his child B[....].
[9]
Applicant says that since that incident the Respondent is refusing
him telephone,
skype or physical access and contact with B[....] and
told him that until the Police investigations are finalised she is
not prepared
to allow B[....] to be seen or have contact with the
Applicant.
[10]
A letter was addressed by the Respondent’s attorneys to the
Applicant’s attorneys
on the 22
nd
June 2021 the
content of that letter read as follows:
“
Subsequent to your
client’s previous visit/ contact session with the minor child
B[....] she complained that her vagina was
sore.
Our client was concerned
and requested B[....] to explain what has occurred where after
B[....] replied “daddy touched my
fanny” and that Mr
B[....] has done this before.
During the week that
followed B[....] continually complained that her vagina was sore.
Our client was alarmed
and booked an appointment with Dr Pat Dorman who specialises in child
abuse and sexual assault for the last
26 years. Dr Dorman’s
medical examination revealed evidence of sexual assault.
Our client has recently
noted that upon your client’s visitation/contact sessions with
B[....] that she becomes increasingly
clingy, wets her pants and
doesn’t sleep when B[....] becomes aware that your client will
be visiting, B[....] screams and
doesn’t want to go to your
client.”
[11]
On the 16
th
August 2021 the Applicant launched this
application in the urgent court in Part A, the Applicant seeks the
following order:
i)
That pending receipt of a
forensic as well as a Social Worker’s report he be allowed to
exercise contact to both the minor
children under supervision once a
month over a weekend commencing on Friday.
ii)
That he be allowed daily
telephone contact with both minor children between 17h00 and 18h00.
[12]
The Respondent opposed this and says that it is not in the best
interest of the minor child especially
B[....] that she makes contact
in whatever form with the Applicant whilst the Police are still
investigating a serious case of
sexual assault against the Applicant.
[13]
The Applicant contends that the Police investigation should not be a
bar to him being allowed
access to the minor children as it is taking
long. The Police have already taken a statement from him and
not effected any
arrest.
[14]
This matter is not about the Applicant and the Respondent it is about
the best interest of a
3-year-old child. Matters involving
access and custody will always remain urgent depending on the
circumstances of each matter.
In this matter it is urgent hence
I allow the parties to proceed and address the merits of the matter.
[15]
The Respondent makes the point and correctly so in her answering
affidavit that she believes
that she as the Primary Care Giver of
B[....] need to listen to her and protect her. The assessment
by the SAP and Mrs Jooste
have commenced and are under way and should
not be tempered with. Allowing contact between the minor
children and the Applicant
at this sensitive stage of the
investigation may not be in the interest of not only the minor child
but also the interest of justice.
[16]
I have been referred to various case law on the best interest of the
minor child amongst them
is the Constitutional Court decision by Sach
J in the matter of
S v M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2008 (3) SA 232
CC at para 17
where the following is said:
“
What unites these
principles and lies at the heart of Section 28 I believe is the right
of a child to be a child and enjoy special
care.”
[17]
The Respondent in refusing the Applicant access to the minor child is
not being vindictive because
of the impending divorce. It is
because she is concerned and wants to afford B[....] and T[....] to
enjoy special care as
children. I have no doubt that when the
investigation shall have been completed and the forensic and social
worker reports been
made available including that the Applicant is
not to blame appropriate steps will be taken to regularise the
situation and resume
contact.
[18]
At this stage it is my view that as a court it would be foolhardy and
too quick to allow contact.
[19]
In the result I make the following order:
ORDER:
1.
The application is
dismissed.
2.
The Applicant is ordered
to pay the Respondents taxed party and party costs.
Dated at Johannesburg on
this 14 day of September 2021
M A MAKUME
JUDGE OF THE HIGH
COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
DATE OF HEARING
:
31
August 2021
DATE OF JUDGMENT
: 14
September
2021
FOR
APPLICANT
:
Adv L
Norman
FOR RESPONDENT
:
Adv
Engelbrecht