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[2018] ZAGPPHC 610
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K.M v J.W (95071/2016) [2018] ZAGPPHC 610 (26 January 2018)
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, PRETORIA
CASE
NO: 95071/2016
26/1/2018
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER JUDGES
(3)
REVISED
In
the matter between:
K
M
Applicant
and
J
W
Respondent
JUDGMENT
MOSOPA,
AJ
[1]
The Applicant launched an application on
which is seeking relief in the following terms:
1.1
Dispensing in terms of
section 18(5)
of
the
Children's Act no 38 of 2005
, with the Respondent's consent in
terms of
section 18(3)(c)(ii)i
and (iv) of the Act and for the
purpose of this prayer the consent of the Respondent for the issue of
the passport and/or a visa
to be issued for the minor child, T A W,
in order for the minor child to travel with the applicant to and
between the Republic
of South Africa and the Democratic Republic of
the Congo, is dispensed with; and ancillary relief.
[2]
The Respondent before the commencement
of the proceedings applied for postponement of the matter and the
application was opposed
by the Applicant. I have already made the
ruling in that regard that the application for postponement is
refused and the matter
should proceed. The application for
postponement was pre-empted by the fact that the Respondent did not
file his written submissions
as directed by the Practice Directives.
After allowing the Respondent to argue the matter I requested counsel
appearing on behalf
on the parties to submit supplementary written
submissions and I am grateful for their written submissions.
Factual
Matrix
[3]
The parties in this matter have been in
an intimate relationship since 2008 but were never married which
relationship was terminated
in January 2012. When the Applicant left
the Respondent's place of residence unbeknown to her, she was one
month pregnant; the
Respondent being the father of the unborn child.
[4]
Both parties are the biological parents
of the minor child, T, and are co-holders of full parental
responsibilities and rights in
respect of the minor child as
contemplated by
section 18(1)
and (2) of the
Children's Act.
Applicant's
pregnancy reunited the parties and they stayed together
from September 2012. Tiago was then born on the 10th October 2012.
The
Applicant and the minor child vacated the Respondent's place of
residence after staying with the Respondent for a period of
approximately
eleven (11) months after the birth of the minor child,
when the Respondent informed the Applicant that he want to move in
with
his fiancé.
[5]
After moving out of the Respondent's
place of residence the Applicant and the minor child stayed at
Bedfordview. The Applicant then
relocated to Kuruman, Northern Cape,
in October 2014 together with the minor child. The applicant became
engaged to her fiancé,
Mr R L, on the 28 November 2015. Whilst
staying in Kuruman the applicant obtained a protection order against
the Respondent in
terms of the provisions of the Domestic Violence
Act 116 of 1993, after the Applicant alleges that the Respondent is
harassing
and threatening her.
[6]
Eventually the Applicant relocated to
Democratic Republic of Congo ("DRC") to assume her
employment responsibilities in
the DRC with effect from the 5
th
December 2015. When she left the Republic of South Africa ("RSA")
the Applicant did not leave with the minor child and
left the child
in the care of the Respondent. The respondent has since been staying
with the minor child since that time.
[7]
I must pause to mention that before the
Applicant left for DRC, the respondent launched an application in the
Northern Cape High
Court, Kimberley, under case number 2226/14,
seeking primary residence and care of the minor child and the
parental responsibility
of the minor child. The application was not
opposed by the Applicant but the Respondent was not successful in
obtaining the primary
residence and care of the minor child as
primary care and resident of the minor child was awarded to the
Applicant.
[8]
The Respondent refused to grant the
required consent of the removal of the minor child to DRC and his
refusal is mainly grounded
on the fact that the applicant has not:
8.1
provided the Respondent with the address
where the minor child is going to stay in DRC;
8.2
the name of the school where the minor
child is to attend school at is not provided;
8.3
the place where the Applicant is going
to work at and her remuneration and most importantly the fact whether
she will be in a position
to maintain the minor child;
8.4
given information regarding available
medial facilities in the event the minor child falling ill or being
in an accident;
8.5
given information relating to the safety
of the minor child in a country which is politically unstable and not
safe.
[9]
The Applicant on the other hand contends
that:
9.1
She has secured proper accommodation for
herself and the minor child which is a two bedroom house with a very
good security (even
though no reasons given why there is security);
9.2
The minor child's bedroom is furnished
and awaits the child to occupy it;
9.3
The minor child will be enrolled in a
Belgian School (no name provided) with subjects in English, French
and Belgian;
9.4
The school has an aftercare centre where
the minor child can be taken care of after school;
9.5
She is not prepared to mention the
physical address of the place she is residing in at the DRC
The
law
[10]
The legal principle applicable in
relocation cases was set out by Scott JA writing for the majority in
the case of
Jackson v Jackson
2002(2)
SA 303 (SCA) para 2 at 318 E-1: "It is trite that in mattes of
this kind the interests of the children are the first
and paramount
consideration. It is no doubt true that, generally speaking, where;
following a divorce, the custodian parent wishes
to emigrate, a court
will not lightly refuse leave for the children to be taken out of the
country if the decision of the custodian
parent is shown to be
bona
fide
and reasonable. But this is not
because of the so-called rights of the custodian parent; it is
because, in most cases, even if the
access by the non-custodian
parent would be materially affected, it would not be in the best
interest of the children that the
custodian parent be thwarted in his
or her endeavor to emigrate in pursuance of a decision reasonably and
genuinely taken. Indeed,
one can well imagine that in many situations
such a refusal would inevitably result in bitterness and frustration
which could adversely
affect the children. But what must be stressed
is that each case must be decided on its own particular facts. No two
cases are
precisely the same and while past decisions based on other
facts may provide useful guide-lines they do no more than that. By
the
same token, care should be taken not to elevate to rules of law
the dicta of Judges made in the context of the peculiar facts and
circumstances with which they were concerned."
[11]
In
F v F
2006 (3) SA 42
Maya AJA as she then
was, stated: "In deciding whether or not relocation will be in
the child's best interest the court must
carefully evaluate, weigh
and balance myriad of competing factors, including the child's wishes
in appropriate cases. It is unfortunate
reality of marital breakdown
that the former spouse must go their separate ways and reconstitute
their lives in a manner that each
choses alone. Maintaining cordial
relations, remaining in the same geographical area and raising their
children together whilst
rebuilding their lives will, in many cases,
not be possible. Our courts have always recognized and will not
lightly interfere with
the right of a parent who has properly been
awarded custody to choose in a reasonable manner how to order his or
her life. Thus,
for example, in
Bailey
v Bailey
1979(3)SA 128 (A), the
court, in dealing with an application by a custodian parent for leave
to take her children with her to England
on a permanent basis, quoted
- with approval - the following extract from the judgment of Muller J
in
Du Preez v Du Preez
1969
(3) SA 329
(0) at 532 E-F: "This is not to say that the opinion
and divine of the custodian parent are to be ignored or brushed
aside,
indeed, the court takes upon itself a grave responsibility if
it decides to override the custodian parent's decision as to what
is
best in the interests of his child and will only do so after the most
careful consideration of all the circumstances, including
the reasons
for the custodian parents' decision and the emotions or impulses
which have contributed to it."
[12]
Further in Jackson supra, the following
was said: "The fact that a decision has been made by the
custodian parent does not
give rise to some sort of rebuttable
presumption that such decision is correct. The reason why a court is
reluctant to interfere
with the decisions of a custodian parent is
not only because the custodian parent may as a matter of fact, be in
a better position
than the non custodian parent in some cases to
evaluate what is in the best interest of a child but, more
importantly, because
the parent who bears the primary responsibility
of raising up the child should as far as possible be left to do just
that. It is,
however, a constitutional imperative that the interests
of children remain paramount. That is the "central and constant
consideration."
[13]
Section 7 of the Children' s Act 38 of 2005 dealing with the best
interest of child standards provides as
follows:
"7.
(1) Whenever a provision of this Act requires the best interest 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 parent, or any
specific parent, and;
(ii)
the child and any care-giver or person
relevant in these circumstances;
(b)
the attitude of the parents or any
specific parents, towards:-
(i)
the child; and
(ii)
the exercise of parental
responsibilities and rights in respect of the child;
(c)
the capacity of the parents, or any
specific parent, or any other care-giver or 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 on
the child of any separation
from –
(i)
both or either parents, or
(ii)
any brother or sister or other child, or
any care-giver or person, with whom the child has been living;
(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 relations and direct contact with
the parents, or any
specific parent, on a regular basis;
(f)
the need for the child-
(i)
to remain in the care of his parents,
family and extended family; and
(ii)
to maintain connection with his or her
family, extended family, culture or tradition,
(g)
the child's –
(i)
age, maturity and stage of development;
(ii)
gender;
(iii)
background, and
(iv)
any other relevant characteristics of
the child,
(h)
the child's physical and emotional
security and his or her intellectual emotional, social and cultural
development;
(i)
any disability that a child may have;
(j)
any chronic illness from which a child may suffer;
(j)
the need for a child to be brought up
within a stable family environment and, where this is not possible,
in an environment resembling
as closely as possible a caring family
environment;
(k)
the need to protect the child from any
physical or psychological harm that may be caused by –
(i)
subjecting the child to maltreatment ,
abuse, neglect, exploitation or degradation or exposing the child to
violence or exploitation
or other harmful behavior, or
(ii)
exposing the child to maltreatment,
abuse, degradation, ill treatment, violence or harmful behavior
towards another person;
(m)
any family violence involving the child
or family member of the child; and
(n)
which action or decision would avoid or
minimize further legal or administrative proceedings in relation to
the child."
[14]
Section 9
of the
Children's Act further
provides that when dealing
with the best interests of a child:
"In
all matters concerning the care, protection and well-being of a child
the standard that the child's best interest is of
paramount
importance must be applied."
[15]
Equally section 28(2) of the Constitution of the Republic of South
Africa Act 108 of 1996 (as amended) provides
that:
"A
child best interests are of paramount importance in every matter
concerning the child."
[16]
In terms of Art 3(1) of the United Nations Convention on the Rights
of the Child (1989) ratified by South
Africa on 16 January 1995 the
following is stated: "in all actions concerning children whether
undertaken by public or private
social welfare institutions, courts
or law, administrative authorities or legislative bodies, the best
interest of the child shall
be a primary consideration." The
best interests of the child standard is also enshrined in Art 16(1)
of the United Nations
Convention on the Elimination of All forms of
Discrimination Against Women 1979, ratified by South Africa in
December 1995 and
brought into force here on 16 January 1996.
[17]
From the aforegoing it is clear that the
court as an upper guardian of all minor children when dealing with
matters affecting the
child, the standard to be applied is of the
best interest of a minor child. Most importantly when dealing with
cases of relocation
of minor children it is important for the court
to determine as to whether such relocation is reasonable, genuine and
bona. fide
and
to the best interest of the minor child.
Issues
to decide
[18]
The only issues to decide is whether the
Applicant has made out a proper case for the court to consent for the
removal of the minor
to stay with her in the DRC or that the
Applicant has shown that the child's relocation to the DRC is
reasonable and
bona fide
and
to the best interest of the child.
18.1
The Respondent's counter- application.
Application
[19]
The Respondent is
de
facto
the custodian parent of the
minor child since the Applicant left the minor child in the care of
the Respondent when she left for
DRC in mid-November 2015. I am
saying so as before the relocation of the Applicant to the DRC the
minor child has always been staying
with the Applicant and also the
Northern Cape High Court also awarded the Applicant with the
residency and care of the minor child.
However it is clear that the
applicant had access problem with the minor child whilst in the care
of the Respondent as she was
exercising her access right to the minor
child by skype while she was in the DRC. This caused the applicant to
launch an urgent
application in this court m March 2016 where the
parties entered into a settlement of the matter.
[20]
It appears that the major reason why the
Applicant left the minor child in the care of the Respondent was
because the Respondent
refused to consent for the minor child's
removal to the DRC, by refusing to sign passport documents for the
minor child.
[21]
The only reason why the Applicant
relocated to stay on the DRC it was because her employers wanted her
to establish branches in
DRC and was appointed to the Management Team
and such relocation was purely for employment purposes. The Applicant
avers that such
opportunity will improve her financial situation and
that of a minor child. It appears that her relocation to the DRC is
not intended
to be a permanent but only for the duration of her
employment in the DRC.
[22]
However the Applicant fails to take the
court into her confidence and indicate how much is her salary in the
DRC as opposed to what
she was earning whilst working in the Republic
of South Africa and what is the name of the company she is working
for and in what
capacity is she employed in that company. Ms
fabricius on behalf of the Applicant contended that the
abovementioned aspects are
not the requirements for the award of
custody. However I disagree with counsel based on that fact that the
child is currently in
a stable environment under the care of the
Respondent and the child cannot only be allowed to be relocated to an
unknown environment.
[23]
As already indicated the interest of the minor child is of paramount
importance. The Applicant has been away
and not living with the minor
child for approximately a period of two years. The minor child is
currently five years old. It is
clear that over the period in which
the child was left in the care of the Respondent the two created a
serious bond. During her
period of absence the Applicant had limited
access to the minor child.
[24]
The applicant does not give a detailed account of what inspired her
to relocate to the DRC save to state
that they were opening branches
in the DRC and it is difficult at this stage to can determine that
her decision to relocate was
bona fide and genuine or not. Moreover
her relocation to DRC was done in the heist manner, taking into
account that already in
March 2015, she was aware of her possible
move to DRC but did little to convince the Respondent to sign the
passport documents
of the minor child. In November 2015 she was
informed of such work opportunity and assumed her work responsibility
on the 5th December
2015, leaving the minor child in the care of the
Respondent. Despite being in the DRC for approximately two years the
applicant
does not indicate how her financial situation has improved
since relocating to the DRC.
[25]
In
F v F
supra, the court said that: "In deciding whether
or not relocation will be in the child's best interest the court must
carefully
evaluate, weigh and balance a myriad of competing factors,
including the child's wish in appropriate cases."
25.1
Also in
Van Rooyen v Van Rooyen
1999(4) SA 435 the court said
the following: "Turning to the application for relocation, two
preliminary issues arise. The
first relates to the approach of the
court in matters of this nature. It is that there is no onus in the
conventional sense. The
court will evaluate, weigh and balance the
many consideration and competing factors which are relevant to the
decision whether
the proposed change to the children's circumstances
is in their best interest. The court will make an assessment on the
particular
children, in other words, it will apply individual justice
in the sense that all the relevant factors, even the mother's
fundamental
right to freedom of movement, will be assessed in the
context of these children' s best interest."
[26]
In
casu
as already indicated the Respondent
is
de facto
custodian
parent and there are myriad duties flowing from being a custodian
parent which duties includes, the duty to provide the
child with
accommodation, food, clothing and medical care, the duty to educate
and to train the child, and a duty to care for the
child's physical
and emotional wellbeing. It is clear that all this duties were
relegated to the Respondent and the Respondent
did all without the
assistance of the Applicant during the whole period the minor child
was left in the care of the Respondent.
[27]
As a consequence it is generally
accepted that custodian parent (in casu Respondent) has the right to
have the child with him or
her to regulate its life and to decide all
questions of education, training and religious upbringing. See
JvJ
2008
(6) SA 30
(C).
[28]
It is also important to consider the
motivation of the Applicant of relocating the child to DRC whether it
will serve the best interest
of the minor child. On the same breath
it is also important to consider the current custodian parents
interest as to whether his
refusal to consent to the removal of the
minor child will advantage or disadvantage the minor child.
[29]
The minor child is only five years and because of his age it is
practically impossible for him to participate
in the process of
relocation and give his wishes. This is borne by the fact that
communication between the child and the Family
Advocate was not being
without challenges and the Family Advocate label it as "difficult".
29.1
In terms of the United Nations
Convention, the courts must " assure" to the child who is
capable of forming his or her
own views the right to express those
views freely in all matters affecting the child, the views of the
child being given due weight
in accordance with the age and maturity
of the child. Thus if the court is satisfied that the child in
question has the requisite
intellectual and emotional maturity to
make an informed and intelligent judgment, then the court should give
serious consideration
to the child's expressed preferences;
29.2
Section 10
of the
Children's Act
provides
that, "Every child that is on an age, maturity and
stage of development as to be able to participate in any matter
concerning
that child has the right to participate in an appropriate
way and views expressed by the child must be given due
consideration."
[30]
The family Advocate in her report
indicated that Ms Lotters, in her absence due to the fact that she
was sick, had a session with
the minor child who was only 4 (four)
years at that time, who indicated the he does not recognize the
Applicant and his fiancé
and later said that it is his mother
and further that things are not good between him and the Respondent.
The Family Advocate recommended
that the primary residence of the
minor child be with the applicant and stay with the child in DRC.
[31]
It must be noted that the Family
Advocate was the only expert in this matter. In her report she
concedes to the fact that there
is no bond between the Applicant and
the minor child which needs to be rebuild. No proper consideration
was made as to the circumstances
in which the minor child was to live
under in the DRC. The educational needs of the minor child were not
properly considered as
is the safety and security of the minor child.
The minor child speaks English, Portuguese and Afrikaans whereas in
DRC a different
language(s) i.e Belgian, is spoken in the DRC. On the
contrary the report does not report that the minor child is subjected
to
any form of maltreatment, abuse, negligent, exploitation or
degradation while in the care of the Respondent. No mention is made
that if the child is not removed to DRC, there is a likelihood of the
effect on the child's circumstances.
[32]
The following I found to be competing
factors and considerations:
32.1
The minor child and the Respondent
created a strong bond between themselves since the Applicant left the
minor child in the care
of the Respondent in November 2015;
32.2
The Applicant's wish to relocate to DRC
is not
bona fide
and
genuine;
32.3
The Applicant fails to provide court
with the proper and detailed arrangements of the child when staying
in DRC. Judicial notice
is taken of the fact that DRC is not
politically stable and safe. Moreover the court is in the dark as to
the exact location of
the Applicant's residence in the DRC;
32.4
The Applicant failed to provide, even
though recently in her supplementary heads of argument, said she is
willing to provide, the
Respondent with the place, address where she
is staying in the DRC;
32.5
The Respondent is employed as a Regional
Manager for the Chamber Tarr Group, Broadacres, Fourways and is
maintaining the minor child
who is currently attending a pre-school;
32.6
The Applicant even though she is saying
that she is employed she does not indicate where she is employed and
what amount she is
earning to can properly take care of the child;
32.7
The Applicant has still to establish
bond with the minor child as the child has forgotten the Applicant;
32.8
The Applicant does not indicate as to
where she is staying in the DRC there are medical facilities which
cater for the child's needs
in cases he gets sick or involved in
accidents;
32.9
Due to the age and maturity of the minor
child, the child could not give his preferences;
32.10
The removal of the minor child from the
Respondent in my view, will have far reaching consequences in the
circumstances of the child
in terms of language, culture and
wellbeing in the DRC.
Counter-application
[33]
The Respondent brought a
counter-application to the Applicants' application in which he seeks
relief to:
33.1
delete and substitute prayers 1.1; 1.2
and 2 of the court order of the Northern Cape High Court to read as
follows:
33.1.1
that primary residence of the minor
child is awarded to the Respondent and that he will be responsible
for the day to day care of
the minor child;
33.1.2
the Applicant be· awarded
reasonable contact of the minor child, by having the child during
with her when visiting South
Africa, while living in DRC;
33.1.3
and when she permanently returns to
South Africa to have the child every alternative weekend, alternative
short school holidays
and 50% of the long school holidays.
33.2
The court in the Northern Cape High
Court when granting the Applicant residence and care of the minor
child, even though the application
was not opposed by the Applicant,
was to a large extent guided by the Family Advocate report which
investigated the circumstances
of the minor child at that stage.
33.3
As already indicated the major reason
why the Respondent happened to be in the care and custody of the
minor child was for the fact
that he refused to sign passport
documents of the minor child. The Applicant as a last option left the
minor child in the care
of the Respondent. It is not clear as to why
she opted to leave the child with the Respondent as her parents are
still alive and
living in the Republic of South Africa.
33.4
However this is the decision which the
Applicant has to live with for the rest of her life. I do not intend
to interfere as a whole
at this stage with the court order of
Northern Cape High Court but I am compelled to give temporary
residency and care of the minor
child to the Respondent during the
stay of the Applicant in the DRC.
33.5
This decision is mainly driven by the
fact that the minor child has been with the respondent since the
Applicant left the country
for DRC. No wrong doings have been brought
to the attention of the court that the child is neglected or abused.
Even during the
time of the Applicants' visit to South Africa she did
not pick-up any signs of abuse of the minor child, because if it was
the
case she would have as a matter of urgency bring it to the
attention of the Social Workers or the court.
33.6
It will be a travesty of justice if the
Applicant can lose the right of reasonable access to the minor child
simply because the
court did not grant her the relief in terms of the
Notice of Motion. The Applicant is entitled to exercise her right to
access
which must be preceded by binding. - process as recommended by
the Family Advocate.
[34]
I am alive to the fact that this issue
is a sensitive and emotional one which affects both parties. Both
parties are emotionally
tied to the minor child and the Applicant
want to permanently reside with the minor child in the DRC. It must
be emphasized on
the parties that this is not a game and there is no
winner and loser in this matter. lam also of the view that justice
and fairness
will be best served if no order as to costs is made.
[35]
I therefore make the following order:
1.
The application to dispense with consent
in terms of
section 18(3)(c)(iii)
and (iv) of the
Children's Act is
refused;
2.
Both parties shall retain parental
responsibilities and rights in respect of the minor child
T
A W,
born on 10 October 2012,
subject to that hereunder;
3.
The primary care and residency of the
minor child will be temporarily with the Respondent while the
applicant is in the Democratic
Republic of Congo;
4.
The Applicant's right of contact shall
be as follows:
5.1
Reasonable skype contact and the
Respondent is ordered to furnish the Applicant with the contact
numbers to give effect to such
skype contact;
5.2
The Respondent is to inform the
Applicant every time he changes the skype contact details of such new
details;
5.3
The Respondent is not to unreasonably
deny the Applicant skype contact;
5.4
The right of the Applicant to remove the
minor child and be with her at any time when the Applicant is in the
Republic of South
Africa;
5.
The parties to appoint a practicing
Educational Psychologist jointly to assist the Applicant and the
minor child with the necessary
binding - process as recommended by
the Family Advocate, and such binding - process to commence
immediately and it must be done
before the Applicant exercise her
physical contact with the minor child..
6.
Each party to pay his or her cost.
M.J
Mosopa
Acting
Judge of the High Court
APPEARANCES:
For
the Applicants:
Adv
M Fabricius
Instructed
by:
Schoeman
& Associates Attorneys, Pretoria
For
the Respondent:
Adv
E Heyneke
Instructed
by:
Van
Der Berg Attorneys, Pretoria