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2021
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[2021] ZAGPJHC 582
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C[....] v C[....] (A3008/2020) [2021] ZAGPJHC 582 (22 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
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER JUDGES: NO.
(3)
REVISED.
Case No.
A3008/2020
In
the matter between:
M[....]
C[....]
APPELLANT
and
A[....]
C[....]
RESPONDENT
JUDGMENT
RANDERA
AJ (MEYER J concurring)
[1] The Appellant appeals
against part of the judgment and order handed down on 13 January 2020
by Magistrate
Mowane in the Regional Court held at Vereeniging.
The appeal relates to the refusal of the Magistrate to vary and grant
the
Appellant shared residence of the parties’ minor child and
to maintain the status
quo
, as it existed at that time.
[2] The Appellant and the
Respondent were married to each other on 6 December 2014 and had one
minor child
L[….] (the minor child) born on 21 January 2013.
The Appellant left the matrimonial home in June 2016 taking the minor
child with her.
[3] On 8 September 2016, in the
Children’s Court the parties agreed to a shared parenting plan
on
a 50/50 basis and which plan was put into effect on “a one
week on and one week off” basis. This Order in the
Children’s Court was obtained pursuant to an agreement between
the Appellant and Respondent. At the time the minor child
was 3 years
and 7 months old.
[4] Some two months later, on 11
November 2016, the Respondent, unbeknown to the Appellant, obtained a
Divorce
Order in terms of which order the contact arrangements with
the minor child were changed. The Appellant had no knowledge of
this order and did not consent thereto. The Respondent thereafter
implemented the contact arrangement in terms of the Divorce Order
and
only afforded the Appellant access to the minor child every alternate
weekend.
[5] On 26 January 2018, pursuant
to a judgment by Magistrate Reyneke, the 50/50 shared residence
arrangement
was reinstated. On 21 January 2020, Magistrate Mowane
ordered the implementation of the recommendations set out in a Family
Advocate’s
report.
[6] Pursuant to the granting of
the Decree of Divorce the Appellant made application for the
variation of
paragraph 3 and 4 of the Divorce Order to set aside,
vary and replace same with the Children’s Court Order and that
same
be incorporated into the Decree of Divorce.
[7] On 26 January 2018,
Magistrate Reyneke set aside paragraph 3 of the Decree of Divorce and
referred the
issue of parental responsibilities and the rights of
contact to the Family Advocate and pending the Family Advocate’s
report
the Order of the Children’s Court was reinstated.
[8] On 26 July 2018 the Family
Advocate compiled a report, in which it was recommended that the
primary
residence of the minor child be with the mother (the
Respondent).
[9] On 5 June 2019 the hearing
of oral evidence commenced before Magistrate Mowane. The main issue
for determination
was the primary residence of the minor child.
[10] On 13 January 2020 Magistrate Mowane
handed down judgment and ordered that the primary residence of the
minor child
to be with the Respondent. The minor child was at
that stage 7 years old.
[11] The Respondent implemented the order
made by Magistrate Mowane and only afforded the Appellant contact
every alternate
weekend.
[12] The Appellant thereafter launched an
Application, on an urgent basis, in the High Court in which
application the
Appellant sought to maintain the ‘week on/week
off’ arrangement as was initially agreed on in the Children’s
Court.
[13] The High Court (Twala J) ordered the
Appellant to return the minor child and that pending the outcome of
the Appeal
instituted by the Appellant, primary residence of the
minor child was to remain with the Respondent and the Family Advocate
was
requested to investigate and compile a report.
[14] The Urgent Application is not before us
and neither are the papers made available to us. We are,
however,
furnished with the Family Advocate’s report compiled
pursuant to the Order of Twala J.
[15] The issue on appeal before this Court
is whether the Order of the Court
a quo
should be set aside
and replaced with an Order that the minor child’s residence
shall be shared between the Appellant and
the Respondent on an equal
basis.
[16] Counsel for the Appellant submitted
that this Court can take cognisance of the second Family Advocates
report;
the one that was obtained pursuant to the Order made by Twala
J. Counsel for the Respondent felt constrained to object to the
admissibility
of the second Family Advocate’s report given the
decision of the full Court in
J v J
2008 (6) SA 30
(C) where,
in similar circumstances, the Family Advocate’s report that had
been obtained after the hearing in the Court
a quo
and before
the Appeal hearing, was admitted.
[17] In
J v J
at 30 F the Court was
of the view that, as the upper guardian of all minors, the Court is
empowered and under a duty to consider
and evaluate all relevant
facts placed before it with a view to deciding the issue which is of
paramount importance: the best interests
of the child.
[18] In
Terblanche v Terblanche
1992
(1) SA 501
(W) at 504C, it was stated that when a Court sits as upper
guardian in a custody matter –
…
..
it has extremely wide powers in establishing what is in the best
interests of minor or dependent children. It is not bound by
procedural strictures or by the limitations of the evidence presented
or contentions advanced by the respective Parties. It may
in fact
have recourse to any source of information, of whatever nature, which
may be able to assist it in resolving custody and
related disputes.
[19] In
P and Another v P and Another
2002 (6) SA 105
(N) at 110 C-D, Hurt J stated that the Court does not
look at sets of circumstances in isolation:
“
I am bound, in considering what is in the
best interests of G, to take everything into account, which has
happened in the past,
even after the close of pleadings and in fact
right up to today. Furthermore, I am bound to take into account the
possibility of
what might happen in the future if I make any specific
order.”
[20] In
AD and DD v DW and Others
[2007] ZACC 27
;
2008 (4) BCLR 359
par30, the Constitutional Court endorsed the view
that the interests of minors should not be “held to
ransom for the
sake of legal niceties” and held that in the
case before it, the best interests of the child “should not be
mechanically
sacrificed on the altar of jurisdictional formalism”.
[21] In the present matter, the second
report by the Family Advocate was placed before us by way of an
affidavit. This
report was completed pursuant to the Urgent
Application brought by the Appellant and after the Appeal had been
noted. The recommendations
in the second report are material in so
far as the stance adopted by the Family Advocate in the Family
Advocate’s first report
is concerned, in the light of
post-judgment facts. The Respondent’s attorneys alerted the
Appellant’s attorneys to
the fact that the second Family
Advocate report would be placed before the Court hearing the appeal.
[22] It is clear that this Court, as the upper
guardian of all minor children, should not be constrained in the
exercise
of its discretion and is bound to take into account all
facts, including the second report of the Family Advocate and
recommendations
contained therein, in order to determine the best
interests of the minor child as far as primary residence is
concerned.
[23] The fundamental principle applied by
our Courts in matters involving primary residence or shared residence
of a
minor child is - as it is in all matters concerning
children - that the child’s best interests are of paramount
importance.
(
Jackson v
Jackson
2002 (2) SA303 (SCA) at
307-308A.)
[24] Magistrate Mowane arrived at the
conclusion she reached on the basis that it was apparent from the
evidence that
the parties were not able to communicate with each
other in respect of the minor child. This was evident from the
differences
they displayed in respect of the medical procedure
required by the minor child. This is no longer an issue as the minor
child has
had the medical procedure.
[25] They disagreed in respect of the
working conditions of the Appellant as well as the care of the minor
child whilst
the Appellant was at work, notwithstanding that the
minor child’s aunt and grandmother look after him while the
Respondent
is at work. The Respondent alleges that the Appellant’s
sister would deny the Respondent from having contact with the minor
child while in her care. The Respondent alleges that she is available
for the minor child throughout the day by virtue of the fact
that she
is self-employed and works from home whilst the Appellant works
shifts and at irregular hours. It is for this reason that
the
Respondent states that she is better suited to care for the minor
child.
[26] Magistrate Mowane’s reliance on
the working times and conditions of the Appellant for granting the
Respondent
primary residence of the minor child is misplaced.
[27] The Appellant alleges that the child’s
needs are not fully catered for while in the Respondent’s care,
such as that the child’s nappy remains unchanged causing a
rash. She alleges that the child is not properly assisted when
he
wants to relieve himself in the toilet; sleeping arrangements for the
minor child when residing with the Appellant are not conducive
to the
child in that not enough blankets or suitable bedding are being made
available. The complaint is that the child is not content
whilst in
the care of the Respondent.
[28] The Appellant’s major complaint
is that the Respondent makes unilateral decisions in respect of the
child
and about his schooling, and she leaves the child with third
parties when she is unavailable for the child.
[29] Needless to say, in disputed divorces
where children are involved, there are often accusations and counter
accusations,
which result in an emotionally charged situation.
These are inevitably felt by the children. That has also been the
case
in this matter. A reading of the record makes it clear that the
disputes between the parties are not about the best interests of
the
child, but rather their own wishes where the child should reside.
[30] Both parties conceded to the Family
Advocate that the communication between them was very poor and that
they blamed
each other for the breakdown in communication. Both
parents however professed to be good parents and have good
relationships with
the minor child. They both also conceded that the
other parent has good relationship with the minor child.
[31] The minor child informed the Family
Advocate that he likes both his parents and their respective homes
and that
he is happy with both his parents.
[32] The Family Advocate ascertained from
the interviews with the minor child that he has good relationships
with both
parents despite the accusations they made against each
other and and he portrayed both his parents “as equally
perfect”.
[33] It was clear to the Family Advocate
that the accusations and attitudes of the parents towards each other
have a
negative impact on the minor child.
[34] The Family Advocate states that in her
assessment “both parents appear to have the capacity to provide
for
the basic needs of the child”.
[35]
It was pointed out by the Family Advocate that:
……
..
“if one considers the changing roles and responsibilities of
parents coupled with the relatively new concept of children’s
rights within the family structure, rights which include the maximum
amount of contact with both parents, I am of the view that
a more
liberal approach to the granting of joint custody may not be
inappropriate. I do not believe the general hostility between
parents
should be a bar to a joint custody order.
As long as both parents are fit and proper persons, it is important
that they should have equal say in the raising of the children.
This
is exactly what a joint custody order allows. One has to weigh up
whether input from both parents, even if the input is at
times
disharmonious, is not preferable to an uninvolved parent.
Disagreement and negotiation are a part of life and generally no
more
so after a divorce than before. Unless the disagreement is of such a
nature that the child is put at risk either physically
or
emotionally, it still seems preferable for the child to learn to deal
with the ups and downs of two involved parents, rather
than to lose
half of his or her rightful parental input. To my mind a joint
custody order would not only promote the rights of
children
subsequent to the divorce of their parents but also help to establish
the equality between the sexes” (
Krugel v Krugel
2003
(6) SA 220
at 228A-D).
[36] In line with this reasoning the Family
Advocate makes the recommendation that:
“
5.1 Both Parties
should remain co-holders of parental responsibilities and rights
towards the child.
5.2 the Parties should exercise their
respective parental responsibilities and rights as per the
recommendations
in paragraph 12 of FA1.
5.3 the Parties should appoint a
suitably qualified professional to assist them in drawing a parenting
plan and
for the said professional to mediate disputes between the
Parties that may arise on the exercise of their respective parental
responsibilities
and rights towards the child.”
[37] I am of the view that a shared
residence arrangement between the Parties will be in the best
interests of the minor
child.
[38] The Parties were requested to prepare a
draft order in relation to the care and contact with the minor child,
which
we would consider in the event that we were of the view that
shared residence would be appropriate in the circumstances. The
Parties have provided us with a comprehensive ‘parenting plan’
which is acceptable to us.
[39] In the result I make the following
Order:
(1)
The Appeal is upheld.
(2)
The order of the court
a quo
is
set aside and replaced with the following order:
The ‘Parenting Plan” attached hereto as
Annexure A is made an Order of this Court.
MOHAMED RANDERA AJ
Date
of Hearing: 17 May 2021
Date
of Judgment: 22 Septemeber- 2021
Attorneys
for Appellant: Otto Krause Inc.
Counsel
for Appellant: Adv S McTurk
Attorneys
for Respondent: Maeyane Attorneys
Counsel
for Respondent: Adv H P West