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[2019] ZAFSHC 77
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B v B (Naidoo ADJP, Reinders J, Mathebula J) [2019] ZAFSHC 77 (11 June 2019)
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IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Appeal
No: 30
/
2019
Case
No: 3567
/
2017
In
the matter between:
R[….]
B[….]
APPELLANT
and
M[….]
B[….]
RESPONDENT
CORAM:
NAIDOO, ADJP et REINDERS, J
et
MATHEBULA, J
JUDGMENT BY:
REINDERS,
J
HEARD ON
:
17 MAY 2019
DELIVERED ON:
11 JUNE 2019
[1] At the heart of this appeal
lies the best interest of two minor boys, [J] (born on 8 October
2010) and
[A] (born on 25 July 2014). The appeal lies against the
entire judgment of a single judge. The appellant was the applicant in
the
trial court.
[2] The parties got
married in 2010, but the love boat sank in 2015 when the bonds of
marriage
between the appellant and respondent were dissolved. At that
time, the parties concluded a settlement agreement (the deed of
settlement),
in terms of which the respondent (as defendant) was
awarded the rights to primary care and residency in respect of the
minor children,
whilst the appellant (as plaintiff) was awarded the
right to reasonable contact with the children, the terms of which
were stipulated
in the deed of settlement which was made an order of
court.
[3] On 13 July 2017 the
appellant issued an application seeking relief in terms whereof
paragraph 1 of the
deed of settlement be amended to the extent that
he be awarded the primary care and residency of the minors, subject
to respondent’s
rights of contact. A further amendment of
paragraph 2 of the deed of settlement was sought to have the
respondent pay maintenance
in respect of the minors.
[4] The respondent opposed the
relief so claimed, and issued a counter application in terms whereof
she
requested relief in the following terms:
“
1. An order to
amend paragraph 1 of the Court Order dated 26 March 2015 (hereinafter
“the order”)
to read as follows: “Die ouerlike
verantwoordelikhede en regte ten aansien van die versorging van die
minderjarige kinders
soos uiteengesit in Artikel 18(2)(a) van die
Kinderwet , Wet 38 van 2005 aan die Verweerderes toegeken word
onderhewig daaraan
dat die minderjarige kinders by die Verweerderes
se ouers, Gert Johannes Muller en Anna Margaretha Susanna Muller sal
woon tot
en met 31 Augustus 2019 of wanneer die Verweerderes haar
studies voltooi of dit beeindig welke ookal eerste gebeur”;
2. An
Order directing that the amendment be effective retrospectively and
that the
status quo with reference to the minors will remain the
same;
3. An
Order directing that the Application in regards to contact with the
minor
child [A..] [B…] by the Applicant be dealt with in the
Regional Court Free State Division held in Bethlehem.
4. An
order that the Applicant pays the costs of this Family Advocate.”
[5] The Family Advocate compiled
and filed its report on 19 February 2018. On 11 July 2018 the
appellant
filed a supplementary affidavit (and condonation therefor).
Opposing and replying papers were filed. The application was heard on
16 August 2018 and judgment handed down on 6 December 2018. Leave to
appeal was granted by the court a quo on 8 February 2019.
Heads of
argument were filed on behalf of both parties. Appellant filed
supplementary heads in response to respondent’s heads,
stating
that a new point in law had been raised in the heads. At the hearing
before us the latter point was abandoned and the parties
agreed that
the matter proceed and be finalized in the interest of the minor
children.
[7] Having considered the
evidence and submissions, the court
a quo
granted the
following relief:
“
1.
Both
parties to be holders of Parental Rights and Responsibilities as
contemplated in Section 18 of the Children’s Act.
2.
That
the minor children’s primary care, including their residence is
to remain with the Respondent.
3.
That
the maternal grandparents should temporarily continue to reside with
the minor children until such time when the Respondent
completes her
studies.
4.
That
the Applicant will exercise his contact rights as contemplated in
Section 18(2)(b) as follows:
4.1
Reasonable telephone contact with the minor
children.
4.2
Contact on alternative weekends with both [J] and
[A]
(full names omitted)
,
which weekend will commence on a Friday at 15:00 till Sunday 17:00.
4.3
The Applicant is to have contact with the minor
children every Wednesday from 15h00 till 18h00.
4.4
Short school holidays to alternate between the
parties and long school holidays to be shared equally between the
parties.
4.5
Contact on Father’s day or on the birthday
of both minor children if such a day does not coincide with the usual
access weekend.
4.6
Maternal grandmother not to frustrate the above
contact between the children and the Applicant.
5.
Each
party to pay their own costs.”
[8] The appellant relied on
various grounds of appeal and stated that the court
a quo
erred
in several respects. In my view these can be summarised as
follows:
·
the
court
a quo
erred in
preserving the status quo and not awarding the primary care and
residency of the minors to the appellant. Included herein
is the
order that only the maternal grandmother should refrain from
frustrating his contacts rights, whilst both grandparents and
the
respondent should have been ordered to do so.
·
the
court
a quo
erred in
not adjudicating the two points
in limine
taken by appellant in opposing the relief claimed by respondent in
her Family Advocate, to wit non-joinder of maternal grandparents
and
the respondent’s lack of
locus standi
to
bring the counter application. Furthermore the court
a
quo
erred in not adjudicating and making any
orders on the counter-application.
·
the
court
a quo
erred in
accepting the recommendations of the Family Advocate as stated in its
report. The Family Advocate did not investigate
and prepare a report
especially in regard to the maternal grandparents.
[9] Mr Peyper, appearing for
appellant, submitted that the supplementary affidavit plays a very
important
role as same introduces new circumstances which should have
been investigated by the Family Advocate. These include:
·
the
maternal grandfather’s employment abroad
·
leaving
the maternal grandmother and the children on the farm which is not a
safe environment;
·
the
non-compliance of the respondent and maternal grandparents with the
Family Advocate’s recommendations to enrol [A] in
a pre-primary
school; and
·
alleged
attempts by respondent and the maternal grandparents to influence
appellant to withdraw the application.
[10] Mr Peyper submitted that the court
a
quo
erred in not requesting a supplementary
report by the Family Advocate which deals with new averments and
especially investigating
the circumstances at the maternal
grandparents’ residence. According to Mr Peyper there is no
certainty that respondent would
finalise her studies at the end of
July and she might find employment in Durban, and the trial court
should have catered for this
in its order to enable the appellant to
approach court to reconsider the care of the minor children. There is
no merit in this
submission. The appellant is at liberty to approach
court at any time regarding the care of the minor children, and does
not require
the leave of this court to do so, provided that a proper
case is made out. Mr Peyper insisted that a re-investigation should
have
been done by the Family Advocate before orders were granted by
the court a quo, and therefore it is appropriate for this court on
appeal to refer the matter back to the Family Advocate and then make
a final decision. We were not referred to any case law substantiating
this submission, but the submission is without any merit.
[11] The appellant chose the grounds for his
application in the founding papers. The proposed re-investigation is
based on
further grounds that have nothing to do with the original
grounds, nor do they warrant re-investigation. The children have
lived
almost their entire lives at the maternal grandparents’
home, without problems. There is no evidence showing that the there
is reason to doubt the safety of the farm where the children live.
Other than expressing reservations about the employment of the
maternal grandfather in the United States of America, there is
nothing to indicate that this impacts negatively on the children.
The
court
a quo
probably
for these reasons (in my view, correctly) did not make such an order.
[12] The respondent was represented by Mr De
Beer. He alluded to the common cause fact that respondent, who at
divorce
was left by the appellant without an income, with [J] who was
a toddler and while she was pregnant with [A], moved to her parents
home on a farm 15km from Bethlehem. Since that time the children grew
up in a loving, caring and stable environment created by
the
respondent and the maternal grandparents. The investigation by the
family counsellor was conducted when all parties were present,
including the siblings of the respondent, and she concluded that the
minor children were properly nurtured. No issue was taken
by the
appellant at the time and no complaints were raised about poor family
circumstances or the unsuitability of the maternal
grandparents to
assist in taking care of the minor children. Although [A] was under
developed, [J] was raised by the respondent
and maternal
grandparents, and was well adjusted. Mr De Beer submitted that any
re-referral to the Family Advocate is not in the
best interests of
the children, as it would only lead to prolonged litigation. I am in
agreement with him.
[13] In my view the application
for an amendment of the deed was prompted (according to the
appellant) by
the respondent’s possible relocation to Durban on
a permanent basis while leaving the children with her parents on a
farm
near Bethlehem. This was what the Family Advocate was required
to investigate. The respondent explained in her opposing papers that
the reason for her temporary residence in Durban is solely for the
purpose of improving her chances of employment in the labour
market
by obtaining a qualification in the hospitality industry. The
conclusion of her studies would appear to be in August 2019.
In my
view this exposition by the respondent could not be gainsaid or found
to be false. No other substantial reasons why the primary
care and
place of residence should be awarded to the appellant were forwarded
in the founding papers. The court
a quo
was
alive hereto and found that the respondent should not be faulted for
having temporarily moved to Durban to advance her career.
In so doing
the respondent temporarily left the children with her parents where
they have been residing for almost all of their
lives. The court
a
quo
mentioned that this was also to the
advantage of the applicant as removing the children to Durban would
probably have hindered and
complicated appellant’s rights to
access.
[14] I am not of the view that
the court
a quo
erred
in the aforementioned regard and, on the contrary, I approve of the
arrangement. The Family Advocate with the assistance of
a registered
and qualified social worker who was appointed as a family counsellor,
Mrs Van der Westhuizen, reports that the assessment
of [J] indicates
that he has a secure relationship with the maternal grandparents with
whom he resides. He shares a close bond
with his brother. He has
regular contact with both the appellant and the respondent and shares
a good relationship with both of
them. Mrs Van der Westhuizen
observed him to be well cared for and his general development and
progress at school is described
as being good. An assessment of the
younger brother [A] indicated that he is well cared for physically.
Although there are concerns
with regard to his development and in
particular his speech and language, his developmental challenges are
not due neglect or lack
of proper care by respondent or the maternal
grandparents. He is happy on the farm where he currently
resides (at the maternal
grandparents). He appeared to be comfortable
with the appellant, the respondent and the maternal grandparents. The
Family Advocate
concluded that the Respondent should retain her
parental rights of care and that the children should continue to
reside with the
maternal grandparents until such a time as the
respondent has completed her studies. This is, at present, a mere two
months from
now.
[15] Having received the report of the
Family Advocate, appellant sought leave to file a supplementary
affidavit. The
court
a quo
in its judgment does not refer to this application and one of the
grounds of appeal suggests that the court
a
quo
did not adjudicate or take into account
the supplementary affidavit. In my view nothing contained in the
supplementary affidavit
could have prompted the court
a
quo
to request the Family Advocate for a new
investigation or would have convinced it to grant the relief sought
in the notice of motion,
namely an amendment of paragraphs 1 and 2 of
the deed of settlement. It is however heartening to read in the
supplementary affidavit
that the appellant and respondent made
arrangements with regard to appellant’s access and that the
youngest boy [A] will
sleep over for two nights every fortnight. In
addition appellant avers that he has now taken with him both the
children for several
weekends without incident. The respondent in her
opposing supplementary affidavit states that the recommendations of
the Family
Advocate were implemented and both children have adapted
well. She further states the emotional security of the arrangement
with
her parents and regular contact with the appellant is in the
children’s best interest. None of the information in the
supplementary
affidavit called for granting of the appellant’s
application, and for this reason the court
a
quo
possibly did not refer thereto in its
judgment.
[16] The court a quo made various orders as
alluded to above. It is clear therefrom that the relief sought by the
appellant
was not granted. No reference was made to the
counter-application but it seems from paragraph 3 of the order that
at least some
of the relief sought by the respondent was granted. I
point out also that the order in paragraph 3 is one of the
recommendations
of the Family Advocate. However, in my view, none of
the paragraphs in the deed of settlement were deleted or amended,
either in
terms of the main application, or the counter- application.
It is also my view that neither the appellant (in the main
application)
nor the respondent (in the counter application) made out
a case for an amendment of the deed of settlement.
[17] What the court
a
quo
did was to make the Family Advocate’s
recommendations orders of court. None of the parties moved for such
orders. Paragraphs
1 and 2 of the order of the court
a
quo
were already granted at the divorce. The
remainder of the orders were the recommendations by the Family
Advocate. The court
a quo
ought to have dealt with the main application, counter-application
and report of the Family Advocate and mentioned that it placed
reliance on the Family Advocate’s recommendations. I am of the
view that its failure to do so should not be interpreted as
a failure
to consider the main application and the counter application. I am in
agreement with the essence of the orders granted
by the court a quo.
My view is, however, that the order of the court should have been
differently worded. This will become apparent
from the order below.
[18] The children reside with
the respondent even though she may be temporarily absent from time to
time.
It is true that in her absence her parents take care of the
children with her permission and for good reasons. There is therefore
no reason to amend the deed of settlement or to grant the order
prayed for by the respondent, in the counter-application, that
the
maternal parents should look after the minors temporarily. The
objective facts are that the children reside, to this day, at
the
same residence where they have been residing even before the birth of
[A]. This is the respondent’s choice and in line
with her
parental rights as per the existing divorce order of 26 March 2015.
Respondent sees the children regularly and has frequent
telephonic
contact with them. She has in no way abandoned them. Taking into
account the factors mentioned in Section 7 of the Children’s
Act 38 of 2005, I am satisfied that it is in the best interests of
the minor children that they remain in the care of the respondent
as
was made an order of court on 26
th
March 2015.
[19] One of the grounds of
appeal was that the court
a quo
did not adjudicate and pronounce judgment on the points
in
limine
raised by the appellant, namely
non-joinder and lack of
locus standi
.
In my view this is academic as the counter-application was not
granted, and the court seems to have considered unnecessary to
deal
with points
in limine
in an application that it was not intending to grant. It would
undoubtedly have added greater clarity to the court’s
intention
had it specifically indicated that it did not deem it necessary to
deal with these points. This omission does not, in
my view, amount to
a misdirection warranting the interference of this court.
[20] Although the parties have
implemented the suggestions of the Family Advocate in respect of
appellant’s
contact with [A], it is described by the appellant
as a temporary arrangement, without giving reasons for this
assertion, or fully
canvassing the interim arrangement. It would in
my view therefore not be appropriate to
mero
motu
grant such orders. Likewise, although
the Family Advocate reported mild parent alienation, the appellant
did not seek relief in
terms whereof the court was requested to make
orders prohibiting the respondent and her parents from frustrating
his rights of
contact with the minors. The respondent and maternal
grandparents have been warned by the Family Advocate of the
seriousness of
parental alienation, and there is no reason to believe
that they will not take heed of this warning.
[21] The trial court, for sound
reasons, ordered each party to pay their own costs in the
application. In essence
this is based on the principle that parents
should not be discouraged to approach court for relief concerning the
interest of their
children. An adverse costs order might discourage
parents. The appellant in this matter was aware of the
recommendations of the
Family Advocate as well as the approach of the
court
a quo
. He
decided thereafter to challenge the findings of the court
a
quo
and was not successful. In those
circumstances there is no reason why the costs should not follow the
event on appeal, namely an
adverse costs order against the appellant.
However, the court considered, in its discretion, as it was entitled
to do, that it
would be less harsh on the appellant to order that
each party pay his/her own costs.
[22] It would follow that the
appeal cannot succeed, or is not substantially successful. In my
view, the
orders foreshadowed hereunder would have been appropriate.
[23] In the circumstances I make the
following orders:
1. The appeal
is dismissed.
2. The orders
of the trial court are replaced with the following:
“
1. The main application
is dismissed.
2. The counter-application is
dismissed.
3. Each party is to pay his/her own
costs. “
C REINDERS, J
I
concur
S NAIDOO, ADJP
I
concur
A MATHEBULA, J
On behalf
of Appellant:
Mr P Peyper
Instructed
by:
Peyper Austen Inc Attorneys
Bloemfontein
On
behalf of Respondent:
Mr JF de Beer
Instructed
by:
Human, Le Roux & Meyerowitz
c/o Jacobs Fourie Attorneys
Bloemfontein