About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2020
>>
[2020] ZAGPPHC 84
|
|
J.J.S v M.B.W (69408/2019) [2020] ZAGPPHC 84 (22 February 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
CASE
NO: 69408/2019
DATE:
26/02/2020
In
the matter between:
J[….]
J[….]
S[….]
Applicant
and
M[….]
B[….]
W[….]
Respondent
JUDGMENT
MALUNGANA
AJ
Introduction:
[1]
The
applicant brought an application
pendente
lite
in terms of Rule 43 of the
Uniform Rules of Court, in which he seeks the award of certain
parental responsibilities and rights with
regard to access, contact
of their minor child, B[….], a female born on 3 March 2014.The
application is opposed by the respondent.
[2]
It is common cause that the applicant
and the respondent were married to each other out of community of
property on 2 March 2012,
and there is a divorce action pending
involving the parties. After the parties became separated in
September 2018, Bridget (the
minor) has been residing with her mother
(the respondent).
[3]
Due to the acrimonious nature of their
relationship since the split, the parties are unable to reach an
amicable agreement regarding
the manner in which the applicant has to
exercise his parental right of access and contact in respect of the
minor child, Bridget.
The Facts
[4]
The applicant in his founding affidavit filed in support of the Rule
43 applicants contends
that the respondent has made allegations about
his emotional functioning which resulted in him obtaining the report
of a clinical
psychologist, Dr. Elisa Mecco dated 14 October 2014. Dr
Elisa Mecco's report could not reveal any evidence of aggressive or
violent
behaviour on the part of the applicant. She further
recommended that the applicant be given full liberal access to the
minor child.
[5]
In October 2016 the parties reconciled and moved in together. During
this period the applicant
participated in the minor child's daily
care such as feeding, bathing, changing nappies and clothes, and
putting her to bed. When
the dispute broke out in October 2018, the
parties attempted a formal mediation before a private social worker,
Mrs Irma Schutte,
but when they were almost ready to agree on the
parental agreement the respondent terminated the mandate of the
mediator, and withdrew
from the process.
[6]
In the counterclaim filed in response to the divorce action, the
respondent tendered to
the applicant contact in respect of the minor
child with a right to remove her every alternate weekend on both
Saturday and Sunday.
However, he was not allowed to see Bridget
despite the tender.
[7]
The above situation led to the Family Advocate's intervention. Due to
lack of cooperation
from the respondent, the applicant has been
totally cut off from Bridget. He was informed that the respondent has
since been diagnosed
with breast cancer, and he contends the current
situation requires him to be more closer to the minor child, in the
likely event
that the respondent's becomes too ill.
[8]
The applicant further avers that he engaged the services of a private
social worker, Ms
Jackie Griessel. Her report is attached to the
founding affidavit Both the family advocate and Ms Griessel found
that there is
no reason why the applicant could not have contact with
the Bridget.
[9]
The applicant's counsel submits that the respondent often refuses the
applicant contact
with the minor child, and only allows him contact
after threats have been made from his attorneys. The parties attended
a meeting
with the Family Advocate on 13 August 2019. The Respondent
refused to attend further meetings with the Family Advocate who
pinned
down certain visits on particular dates and for particular
time spans. This is also acknowledged by the respondent
[10] The
respondent answered to the allegations made in the applicant's
founding affidavit She contends
that they have been numerous disputes
between her and the applicant, with applicant refusing to provide
adequate maintenance for
Bridget She has spend a substantial amount
of money on parenting plans but the applicant was the one who was
obstructive. She raises
concern over the applicant's lack of concern
regarding the sexual abuse indence which involved his family member.
She states that
It Is the applicant's constant refusal to acknowledge
what had happened to the minor child and failure to take further
steps to
protect her which had led to the ultimate breakdown of their
marriage.
[11] The
respondent admits that she terminated the meditation process after
she became aware of the fact
that the mediator was counselling the
applicant privately and without her knowledge. She felt that the
mediator was compromised
as she was no longer independent.
12]
According to the respondent, Bridget is fearful of the applicant
because of his temper. She often encourages
her to spend time with
the applicant, but the minor reacts negatively towards the news of
seeing the applicant.
"She
becomes very clingy and tearful. She often will not let me go.”
[13]
Under paragraph 16.2 the respondent asserts as follows:
“
16.2.
I have not terminated the Applicant's rights to contact Bridget. The
Applicant's contact has remained the same
as
when
we
separated. This
contact, until recently, included contact every alternate Saturday
and Sunday from 10h00 until 16h00 and on Wednesday
for an hour. It Is
also included daily telephonic contact. However, since the Family
Advocate
's
interim report. I
have been following the contact recommendation e set out by Family
Advocate."
Legal
frame work and principles
[14] It is
trite that Rule 43 is designed to give fast and affordable relief in
terms of interim disputes
regarding maintenance, and access to the
minor children.
[15]
Section 18(2) of the Children's Act, Act 38 of 2005 provides that:
"The parental
responsibilities and rights that a person may have in respect of the
child, include the responsibility and the
right:-
(a)
to care for the child;
(b)
to maintain contact with the
child;
(c)
to act as guardian of the child;
and
(d)
to contribute to the maintenance
of the child."
[16]
Section 7 of the Children's Act provides
that:
“
(1) Wherever a provision of
this Act requires the best interests of the child standard to be
applied. the following factors must
be taken into consideration where
relevant namely-.
(a)
the nature of the personal relationship
between-
(i)
the child and the
parents, or any specific parent; and
(ii)
…
.
(b)
The attitude of the parents; or any
specific parent, towards-
(i)
the child; and
(ii)
the exercise of parental
responsibilities and rights in respect the child.
(c)
the capacity of the parents, or any
specific parent, or of any other care giver or a person, to
provide for the needs of the
child, including emotional and
intellectual needs;
(d)
the likely effect on the child of any
change in the child's circumstances, including the likely effect of
any change in the child's
circumstances, including the likely effect
on the child of any separation from-
(i)
both or either of the parent;
(ii)
…
(e)
the practical difficulty and expense of
a child having contact with the parents, or any specific parent. and
whether that difficulty
or expense will substantially affect the
child's right to maintain personal relationship and direct contact
with the parents, or
any specific parent, on a regular basis;
(f)
the need for a child -
(i)
to remain in the care of his or her
parent, family and extended family; and
(ii)
to maintain a connection with his or her
family, or extended family. culture or tradition;
(g)
the child's-
(i)
age, maturity and stage of development
(ii)
gender;
(iii)
background
(iv)
any other relevant
characteristics of the child;
[17]
Section 28(2) of the Constitution
enshrines this principle
“
A
child's best interests are of paramount importance in every matter
concerning the child."
Evaluation
[18]
A
good starting point, in my view, is to give due consideration to the
best interests of the minor child. Having said that, the
Constitutional Court in
Fraser v
Naude,
[1]
demonstrated that it could play a
decisive role even in the face of an apparently strong case by one of
the parties to the dispute.
Clearly the case before me is the one
where such approach is necessary.
[19]
It
is the respondent's contention in the Instant matter that she did not
terminate the applicant's contact with the minor child,
Bridget. She
also maintains that since the Family advocate's report she had been
following the contact recommendation set out in
her Interim report. I
have also had sight of the email from the respondent of the 28 May
2019, in which she wrote:
“
Thank you very much I
received the
summons
today.
Please take note of the following
with immediate effect:
·
Phone
Calls
during
the week to Bridget will stop till further notice
·
Wednesday
visitation with Bridget will stop till further notice
·
Every 2
nd
Weekend for an Hour under supervision
-
Place and time
will be communicated a day in advance."
[20]
From
the reading of the two draft orders handed in by counsels, there
appears to be consensus with regard to both parties having
joint
parental rights and responsibilities envisaged by the Children's Act
There is also consensus with regard to the primary residency
of the
minor child being awarded to the respondent. Furthermore the
applicant has indicated during the hearing, correctly so in
my view,
that he will not persist with his claim for a
curator
ad litem
to be appointed for the
respondent. However, in lieu of the curator, he suggests in his draft
order that a social worker be appointed
to investigate all and any
issues relating to the minor child and guide the parties as to the
proper parenting and shared responsibilities,
as well as other
matters relating to the minor child. I am mindful that this is might
prolong the dispute between the parties and
places unnecessary
financial burden upon the parties. The respondent on the other hand
contends that the applicant ought to have
a supervised visit for the
first half hour of the contact session between the applicant and the
minor child. I have difficulty
with this contention as It has not
been established that the applicant poses a threat or any danger to
the minor child on the evidence
placed before me. On the contrary,
the social worker, Mrs Jackie Griessel, whose report has been placed
before me observed that
the applicant is a stable and loving parent.
He went as far as getting himself assessed by a professional in order
to improve his
relationship with Bridget. I have no reason to reject
her findings in this regard.
[21]
The
email from the respondent dated 28 May 2019 clearly indicate, in my
view, that there were some sort of arrangements with the
applicant
regarding contact, and the arrangements were cancelled upon receipt
of the summons. These arrangements somewhat included
Wednesday visits
by the applicant. I have taken into consideration the submissions
made by both parties during the hearing, and
in particular what the
parties consider to be an appropriate order in the given
circumstances. That said, I find that there is
a general agreement
between them insofar as the issue of contact is concerned. It further
seems to me, if I am correct that the
only dispute between the
parties is how that right of access and contact of the minor child
will have to be exercised. I am particularly
influenced by the fact
that both parties recognize the need for the minor child to have
contact with both parents. In these circumstances
it is my view that
it will be In the best interest of the Bridget if both parties are
granted unfettered parental responsibilities
and rights in the manner
that I will set forth In the order.
[22]
In the result the order I make is as
follows:
1.
Primary
care and residency of the minor child, Bridget shall be with the
Respondent, subject to the Applicant's rights of reasonable
contact.
2.
Both
parties shall enjoy joint parental rights and responsibilities, as
envisaged In the Children’s Act, and an decisions
regarding the
minor child's education, medical treatments , extra mural activities,
religious matters and upbringing In general
shall be discussed and
agreed to between the parties.
3.
The
applicant shall exercise his right of contact as follows:
3.1
Every alternate Saturday from 10:00
until 16:00, and Sunday from 9:00 to 13H00.
3.2
Midweek visit shall be every Wednesday
from 17h30 to 18h30;
3.3
Short school holidays to rotate between
the parties, with the April 2020 school holiday to start with the
applicant;.
3.4
Public holidays to rotate between the
parties;
3.5
The applicant will be entitled to spend
4 hours with the minor child's on her birthdays.
3.6
The applicant will spend 4 hours with
the minor child on the father's day;
3.7
The respondent will be entitled to spend
mother's day with the minor child;
3.8
Daily telephonic contact with the minor
child, shall be between 17h00 and 18h00;
3.9
The applicant will continue to maintain
the minor child In accordance with the minor child, currently at the
rate of R1700,00 per
month.
3.10
The
applicant will continue to pay the full school fees of the minor
child directly at the school concerned. Costs of all extra
mural
activities will be shared equally between the parties.
3.11
The
applicant will place and add the minor child as a dependent on his
medical aid. The parties will share equally all other costs
nm
covered by such medical aid.
3.12
Costs
of the application shall be costs in the divorce action.
P
H MALUNGANA
Acting Judge, Gauteng Division,
Pretoria
Appearances:
For
the Applicant:
Adv. Emile Van der
Merwe
Instructed
by:
Thereza Hitge Attorneys
For
the Respondent:
Instructed
by:
S Muskat Attorneys
[1]
1999 1 SA 1
(CC)