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[2020] ZAGPPHC 41
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J.J.P and Another v J.V (47202/2019) [2020] ZAGPPHC 41 (27 January 2020)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 47202/2019
27/1/2020
In
the matter between:
J[….]
J[….] P[….]
First Applicant
A[….]
P[….]
Second Applicant
and
J[….]
V[….]
Respondent
JUDGMENT
(extempore)
PHAHLANE
AJ:
[1]
This is an application by the First Applicant, who is the biological
father of the
3-year-old minor child JJ, to confirm his parental
responsibilities and rights, including the right of guardianship.
This application
extends to the rights of the first applicant to have
contact with the minor child.
[2] The
first applicant indicated in his affidavit, as also argued by his
counsel
that the applicant only has contact with the minor child once
every alternative weekend for 2 hours with direct supervision.
[3]
He is now claiming among other things, unrestricted contact with the
minor child in
the following manner:
1. Every alternative
weekend from Friday 16h00 to Sunday 17h00.
2. Every alternative
Wednesday or other possible pre-arranged day in the week from 16h00
to 18h00.
3. Normal or short
school holidays to be shared with the respondent, who is the
biological mother of the
minor child, but excluding contact during
September / October holidays.
4. Half of the Easter
holidays - which should alternate every year.
5. 3 hours on the minor
child's birthday.
6. 3 hours on his own
birthday
(ie.
Father's
birthday).
[4] At
the same time, the first applicant is also claiming that the second
applicant
be given unsupervised contact as follows:
1. That the second
applicant should have supervised contact - every 4
th
weekend between Friday 10h00 and Sunday 17h00.
2. Every other
Wednesday between 14h00 and 17h00.
[5] A
perusal of the documents have shown that the first applicant has in
his affidavit
raised issues, alleging that the respondent stays In a
zozo house, together with her parents and other 3 other adults. He
also
alleges that there are health hazards relating to the fact that
everyone in the house is smoking in the presence of the child.
Further that the respondent does not want the child to attend
pre-school and that this is hampering on the child's development,
as
he has started to stutter. To this aspect, the 151 applicant alleges
that the respondent refuses the child to be treated by
the speech
therapist. He also indicated that the respondent does not have a
motor vehicle and stays far from medical facilities.
These issues
were however not addressed by both counsels before court.
[6] The
respondent opposes this application, especially with regards to the
second applicant.
It is common cause that the respondent is not
opposed to the first applicant being awarded full parental rights, as
it appears
on paragraph 2.3 of her affidavit which is on page 86 of
the court bundle, and as also submitted by her counsel before court.
This
is an indication that the respondent obviously appreciates the
first applicant's automatic contact rights granted in terms of
section 21
of the
Children's Act 38 of 2005
.
[7] It
is also evident from the arguments and submissions made before court,
as well on
the papers that the second applicant seek entitlement
towards the minor child. In considering her application, there are
factors
which the court must take into consideration in terms of
section 23
(2) of the Act, such as:
(a)
The best interest of the
child;
(b) The relationship between the
child and the second applicant;
(c) The degree of commitment which
the second applicant has shown towards the minor child;
(d) The extent to which she has
contributed towards the expenses relating to the welfare and
maintenance of the child;
and
(e) Any other fact which should in
the opinion of the court be taken into consideration.
[8] Counsel
for the applicants argued that the second applicant has satisfied the
court
in terms of these factors which the court has to take into
consideration - in that, - entering into litigation shows that
the second applicant has shown commitment of having a relationship
with the minor child. Counsel also indicated that from March
2019 to
5 October, the second applicant has had contact with the child.
[9] Relying
on the case of
Townsend-Turner
& another v Morrow 120031 JOL 12035 (C)
counsel on behalf of the respondent argued that the second applicant
has no rights to the minor child. The applicants in the
Townsend
matter were the grandparents who applied to have limited rights of
access to their minor grandson. The court held that the law
confers
no entitlement on anyone other than the legitimate parents of
children to have access to them and it dismissed the
application of the applicants.
[10] Both
counsels have however submitted that the
Townsend
matter
is superseded by the Children Act which was promulgated later and
takes precedence. Counsel on behalf of the respondent
argued that the
second applicant has not made out a case or placed evidence before
court to support her case. It is apparent that
second applicant is
the grandmother of the minor child who wants to have a relationship
with her grandson. Counsel on behalf of
the second applicant have
indicated that this is supported by the fact that on many occasions,
the second applicant - as prove
that she wanted to have a contact;
commitment or a relationship with the child, has a long list of
emails where she tried to have
contact and such was denied.
[11] With regards
to the requirement relating to the extent to which the second
applicant has contributed
towards the expenses or maintenance of the
child, his counsel submitted that this requirement has been met, due
to the fact that
the second applicant has previously contributed by
buying milk and nappies for the minor child.
[12] This court
as the upper guardian of all minor children, has the duty to
safeguard the best interests
of the child, which should prevail over
the interest of any other person including adults, irrespective of
their views.
[13] The Family
Advocate has in the interim report dated 30 September 2019 made some
recommendations
which are as follows:
1. Visits every
alternative weekend - ie. Saturdays from 14h00 to 17h00 and Sunday
from 9h00 to 12h00 -
(this appears on para 6.1.1 which is on
paginated page 260 of the report).
2. Removal rights was
recommended on the alternative Fridays from 14h00 to 17h00 (this
appears on para 6.2).
3. A telephone contact
and a video contact were also recommended.
[14] The
Family Advocate stated in paragraph 7 of her report that: contact
with both the applicants will
be monitored and supervised until the
final report is compiled. However, what is more disturbing is what is
stated by the Family
Advocate on paragraph 5.3 that the child is
aggressive towards the first applicant.
[15] The
respondent having conceded that she does not dispute the rights which
the first respondent has,
it is also clear that the first applicant
wants to have unrestricted contact, which from the beginning was
canvassed with both
counsels, and more particularly, with counsel on
behalf of the applicants that the unrestricted contact which both the
applicants
seek, is in contradiction with what is contained on the
recommendations which appear on paginated page 260- being the report
the
Family Advocate.
[16] Having
said that, with regards to contact with the second applicant, the
respondent submitted
at paragraph 17 of the Heads of Argument, as
well as submissions made by her counsel in court, that the court
should not grant
an order while the court is not in possession of the
final report which has to be compiled by the Family Advocate. It is
apparent
that this relates to the question whether it is safe or in
the best interests of the child to have contact with the second
applicant.
Put differently, whether it is safe or in the best
interests of the child that the second applicant should have contact
rights.
As counsel for the respondent puts it, how would the child
behave or react when In the presence of the second applicant?
[17]
Counsel argued strongly and insists that the second applicant as the
grandparent of the
minor child, does not have inherent right to the
child, though these rights were accommodated in
section 23
of the
Children's Act, and
submitted that the second applicant has not shown
good cause, as to whether she is entitled to be granted these rights,
as prayed
for in the notice of motion, and as argued by her counsel.
[18] It was
also argued on behalf of the respondent that the second applicant
being the grandmother
of the minor child, her rights cannot override
the rights of the child's mother, being the respondent in this
matter. These relates
to the excessive amount of time that is
required by the first and second applicant in relation to having
contact with the minor
child. Counsel argues that the child is not
emotionally ready to be removed from the respondent and further that
the second applicant
can enjoy these rights of contact when the child
goes to the father, being the first applicant.
[19] The
welfare of the minor child is of paramount importance as he needs
stability and emotional
security. Both counsels have indicated to the
court that the respondent works six days a week, and this translates
to the fact
that she has limited time to spend with her son. The
averments that the second applicant have proven that there's a good
case on
behalf of the second applicant with regards to her degree of
commitment towards the child, and making contributions towards the
child, have been disputed by the respondent.
[20] With
the respondent's counsel submitting that the second applicant can
enjoy the rights
to have contact when the child goes to visit his
father, it is my view that giving the unlimited time of contact which
is demanded
by the second applicant would be unfair or unjust to the
respondent. I can find no reason why the respondent should be denied
and
given limited time, by granting that time to the second
applicant.
[21] With
regards to the sleepovers as argued by both counsels, I am of the
view that the sleepovers
should not be granted until the final report
is compiled by the Family Advocate. I am inclined to agree with the
respondent's counsel
that the second applicant has shown no good
cause that she is entitled to be awarded or given special rights or
unlimited rights
to the minor child. It is very unfortunate that till
this day, there is no final report or rather no final report has been
compiled
by the Family Advocate.
[22]
Taking all factors into consideration, as well as the arguments and
submissions made to court, I am
of the view that the second applicant
has not made out a case which entitles her to claim all parental
responsibilities and rights,
as well as extensive contact she wants
to have, with the child. It is also my view that it is not in the
best interest of the child
to grant the second applicant such rights.
[23] The
Family Advocate having made recommendations as they appear in her
report, there were obviously
valid reasons why those recommendations
were made, hence it is always important, as also submitted by both
counsels, to have
the Family Advocate appointed to make an
enquiry or conduct an investigation when matters involving children
are an issue.
[24] I am
informed by both counsels that the contact rights as recommended by
the Family Advocate and as
it appears from her report on page 259 and
260 and at paragraph 6, these rights will continue or should be
awarded as recommended
by the family advocate and agreed to by both
parties regarding the first applicant.
[25] I have
raised my concerns earlier regarding paragraph 5.3 of the Family
Advocate's report where
she stated that the minor child is aggressive
towards his father. An inference might in a way be made that the
emotional stability
of the child is in question, but however, the
first applicant will not be punished because of what is stated in
paragraph 5.3 as
there is still an investigation conducted by the
family advocate.
[26]
Regarding the application itself on behalf of the second applicant,
the application is dismissed with
costs. With regards to the
recommendations made by the family advocate in paragraph 6.1 to 7,
those recommendations will stand.
Para 4 and 5 are not granted - the
reason being that the family advocate is still doing some
investigations, and I am therefore
of the opinion that it is
premature to make a postponement in terms of the relief claimed in
section B to be postponed
sine
die.
As soon as
the final report is available or compiled, the first applicant is
entitled to approach this court. No order as to costs
is issued
against the first applicant because he has to re-enrol the matter
again, once the final report by the family advocate
is made
available.
Under
the circumstances, I make the following order:
1. The First
Applicant is awarded full joint parental responsibilities and rights
with the Respondent
in respect of the Minor child, Jacobus Johannes
van Helsdingen, born 12 February 2016.
2. Pending
the investigation by the Family Advocate the specific parental
responsibilities
and rights towards care and Primary Residence be
awarded to the Respondent, subject thereto that the following rights
of unrestricted
contact be awarded to the First Applicant:
2.1 Every alternative
Saturday from 14:00 -17:00;
2.2 Every alternative
Sunday from 9:00-12:00;
2.3 Every alternative
Friday other than on the weekends stated in 2.1 and 2.2 from 14:00-
17:00 whereby
the second applicant will collect the minor child from
the respondent and hand him over to the First Applicant, the First
Applicant
to return the minor child to the Respondent;
2.4 Telephonic contact
every Tuesday at 19:00; and
2.5 Video call contact
every alternative Sunday between 19:00 and 20:00 on every other
weekend other than
the contact weekends as stipulated in 2.1 and 2.2.
3.
The application by the second applicant is dismissed with costs.
P.
D PHAHLANE
Acting
Judge of the High Court
Gauteng Division, Pretoria
For
the Applicants
: Adv. JC Kotze
For
the Respondent
: Adv. M Bouwer
Date
of Trial
: 27 January 2020
Date
of Judgment
: 27 January 2020