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[2018] ZAKZDHC 23
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B.R v L.S (11830/2016) [2018] ZAKZDHC 23; 2018 (5) SA 308 (KZD) (15 June 2018)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, DURBAN
CASE
NO: 11830/2016
In
the matter between:
B.
R.
Applicant
and
L.
S.
Respondent
Coram: Koen J
Heard: 7 April 2018 and 9
May 2018
Delivered: 15 June 2018
ORDER
1. The Applicant and the
Respondent are declared to be co-holders of full parental
responsibilities and rights in respect of the
minor child, E S, a
boy, born on […] 2015 (‘E’);
2. The primary place of
residence of E. shall be with the Respondent;
3. The Applicant is
entitled to maintain contact with E. as follows:
3.1 from when E. turns 3
years of age until 1 January in the year in which he commences his
Grade 1 schooling:
3.1.1 During school
periods on every Wednesday, from 12h00 (or after crèche if
applicable) to 08h00 on Thursday morning (or
before crèche if
applicable);
3.1.2 During school
periods on every alternate weekend from a Friday at 12h00 (or after
crèche if applicable) to a Sunday
at 16h00;
3.1.3 for half of the
school holidays, with the long school holidays in June/July and
December/January each year to be shared equally
between them, on a
one week rotational basis;
3.1.4 every alternate
public holiday;
3.1.5 on Christmas day
alternating each year from 08h00 to 13h00, and from 13h00 to 18h00;
3.1.6 on the weekend of
Father’s Day, from 08h00 on the Saturday to 16h00 on the
Sunday,
3.1.7 with Mother’s
Day to be spent with the Respondent;
3.1.8 on the minor
child’s birthday, for a minimum of 4 hours;
3.1.9 on the Applicant’s
birthday, for a minimum of 4 hours, with the Respondent’s
birthday to be spent with her;
3.1.10 any further
contact periods by agreement between the parties.
3.2 from 1 January of the
year in which E. commences his Grade 1 schooling:
3.2.1 During school
periods on every Wednesday, from after school to 08h00 on Thursday
morning before school;
3.2.2 During school
periods on every alternate weekend from after school on a Friday to
before school on a Monday;
3.2.3 every alternate
public holiday, save in the event of a public holiday falling before
or after a weekend and thus creating
a long weekend, in which event
the party exercising contact with the minor child for that weekend
shall include the said public
holiday;
3.2.4 for one half of all
of the minor child’s long and short school holiday periods,
with the school holiday period to commence
from after school on the
last day of term and end before school on the first day of the next
term;
3.2.5 on Christmas Day
alternating each year from 08h00 to 13h00, and from 13h00 to 18h00;
3.2.6 on the weekend of
Father’s Day, from 08h00 on the Saturday to 16h00 on the
Sunday,
3.2.7 with Mother’s
Day to be spent with the Respondent;
3.2.8 on the minor
child’s birthday, for a minimum of 4 hours;
3.2.9 on the Applicant’s
birthday, for a minimum of 4 hours, with the Respondent’s
birthday to be spent with her;
3.2.10 any further
contact periods by agreement between the parties.
4. No
order is made as to costs.
JUDGMENT
Koen
J
[1]
This matter concerns a boy E., who was born on [...] 2015, having
been conceived naturally by the Applicant, his biological
father, and
the Respondent, his biological mother.
[1]
[2]
‘Parent’ is defined in s 1 of the Children’s Act 38
of 2005 (hereinafter referred to as ‘the Act’)
as
follows:
‘
in relation to a
child, includes the adoptive parent of a child, but excludes —
(a) the biological father
of a child conceived through the rape of or incest with the child’s
mother;
(b) any person who is
biologically related to a child by reason only of being a gamete
donor for purposes
of artificial
fertilisation; and
(c) a parent whose
parental responsibilities and rights in respect of a child have been
terminated;’
As
the Applicant does not fall within any of the exclusions to the
definition of ‘parent’ he qualifies as E.’s
biological parent to be a ‘parent’ of E. as defined in
the Act.
[3]
The Applicant and the Respondent are however not married, and were
not married either at the time of E.’s conception,
or at the
time of his birth, or at any time between his conception and birth.
The Applicant, although the biological father of
E., would
accordingly ordinarily, and in terms of s 20 of the Act, ‘not
have parental responsibilities and rights in respect
of the child’
as he does not fall into one of the above ‘categories’ as
set out herein.
[4]
Section 21 of the Act however provides that:
‘
(1) The biological
father of a child who does not have parental responsibilities and
rights in respect of the child in terms of
section 20, acquires full
parental responsibilities and rights in respect of the child —
(a) if at the time of the
child’s birth he is living with the mother in a permanent
life-partnership; or
(b) if he, regardless of
whether he has lived or is living with the mother —
(i) consents to be
identified or successfully applies in terms of section 26 to be
identified as the child’s father or pays
damages in terms of
customary law;
(ii) contributes or has
attempted in good faith to contribute to the child’s upbringing
for a reasonable period; and
(iii) contributes or has
attempted in good faith to contribute towards expenses in connection
with the maintenance of the child
for a reasonable period.
[5]
The Applicant maintains that he acquired full parental
responsibilities and rights in respect of E. by reason of him falling
within the provisions of section 21(1)(b) of the Act. On 6 November
2015 he launched an application in which he claims the following
relief, as set out in the notice of motion:
‘
First
Order Prayed
1. THAT pending the final
determination of this application, the Applicant is entitled to
maintain contact with the minor child,
namely E. S., a boy, born on
[...] 2015, as follows:
every Tuesday and
Thursday afternoon, from 12h00 to 17h00;
every weekend,
alternating on a Saturday and a Sunday, from 08h00 to 13h00;
2. THAT in order for the
Applicant to exercise his contact with the minor child as provided
for in paragraph 1 hereof, he or his
mother, L. R., shall collect the
minor child from the Respondent’s home at the commencement of
such periods, and either the
Applicant or his mother shall return the
minor child to the Respondent’s home at the conclusion thereof;
3. THAT the Office of the
Family Advocate, Durban, is hereby requested to conduct an enquiry
and compile a report, setting out therein
its recommendations
regarding the relief sought by the Applicant in this application, and
in particular whether the Applicant should
be declared a co-holder of
full parental responsibilities and rights, and the extent to which he
should be entitled to exercise
contact with the minor child, as
sought by the Applicant in the Second Order Prayed herein below;
4. THAT the costs be
reserved for determination by the Court hearing this application in
relation to the relief sought in the Second
Order Prayed;
5. THAT, alternatively to
paragraph 4 hereof, and in the event of the Respondent opposing the
relief sought by the Applicant in
the First Order Prayed, she be
directed to pay the costs associated therewith;
6. THAT further or
alternative relief be granted as this Honourable Court may deem
appropriate.
TAKE NOTICE FURTHER THAT
thereafter, once the Office of the Family Advocate has delivered a
report, as requested in paragraph 3
of the First Order Prayed, and on
a date to be arranged with the Registrar of this Honourable Court,
the Applicant will make application
to this Honourable Court for an
Order as prayed in the Second Order Prayed.
SECOND ORDER PRAYED
1. THAT the Applicant and
the Respondent are declared to be co-holders of full parental
responsibilities and rights in respect of
the minor child, E. S., a
boy, born on [...] 2015;
2. THAT the primary place
of residence of the minor child shall be with the Respondent;
3. THAT the Applicant is
entitled to maintain contact with the minor child as follows:
3.1 from the date of this
Order until the minor child turns 3 years of age:
3.1.1 every Tuesday and
Thursday afternoon, from 12h00 to 17h00;
3.1.2 every alternate
weekend from 08h00 on a Saturday to 16h00 on a Sunday;
3.1.3 on Christmas Day,
alternating each year from 08h00 to 13h00, and from 13h00 to 18h00;
3.1.4 on the weekend of
Father’s Day, from 08h00 on the Saturday to 16h00 on the
Sunday, with Mother’s Day to be spent
with the Respondent;
3.1.5 on the minor
child’s birthday, for a minimum of 4 hours;
3.1.6 on the Applicant’s
birthday, for a minimum of 4 hours, with the Respondent’s
birthday to be spent with her;
3.1.7 any further contact
periods by agreement between the parties;
3.2 from when the minor
child turns 3 years of age until 1 January in the year in which the
minor child commences his Grade 1 schooling:
3.2.1 during school term
periods:
3.2.1.1 every Wednesday,
from 12h00 (or after crèche if applicable) to 08h00 on
Thursday morning (or before crèche
if applicable);
3.2.1.2 every alternate
weekend from a Friday at 12h00 (or after crèche if applicable)
to a Sunday at 16h00;
3.2.1.3 for half of the
school holidays, with the long school holidays in June/July and
December/January each year to be shared
equally between them, on a
one week rotational basis;
3.2.2 every alternate
public holiday;
3.2.3 on Christmas day
alternating each year from 08h00 to 13h00, and from 13h00 to 18h00;
3.2.4 on the weekend of
Father’s Day, from 08h00 on the Saturday to 16h00 on the
Sunday, with Mother’s Day to be spent
with the Respondent;
3.2.5 on the minor
child’s birthday, for a minimum of 4 hours;
3.2.6 on the Applicant’s
birthday, for a minimum of 4 hours, with the Respondent’s
birthday to be spent with her;
3.2.7 any further contact
periods by agreement between the parties;
3.3 from 1 January of the
year in which the minor child commences his Grade 1 schooling:
3.3.1 during school term
periods:
3.3.1.1 every Wednesday,
from after school to 08h00 on Thursday morning before school;
3.3.1.2 every alternate
weekend from after school on a Friday to before school on a Monday;
3.3.1.3 every alternate
public holiday, save in the event of a public holiday falling before
or after a weekend and thus creating
a long weekend, in which event
the party exercising contact with the minor child for that weekend
shall include the said public
holiday;
3.3.2 for one half of all
of the minor child’s long and short school holiday periods,
with the school holiday period to commence
from after school on the
last day of term and end before school on the first day of the next
term;
3.3.3 on Christmas Day
alternating each year from 08h00 to 13h00, and from 13h00 to 18h00;
3.3.4 on the weekend of
Father’s Day, from 08h00 on the Saturday to 16h00 on the
Sunday, with Mother’s Day to be spent
with the Respondent;
3.3.5 on the minor
child’s birthday, for a minimum of 4 hours;
3.3.6 on the Applicant’s
birthday, for a minimum of 4 hours, with the Respondent’s
birthday to be spent with her;
3.3.7 any further contact
periods by agreement between the parties;
4. THAT there be no Order
as to costs;
5. THAT alternatively to
paragraph 4 hereof, and in the event of the Respondent opposing the
relief sought herein, she be directed
to pay the costs of this
application;
6. THAT further or
alternative relief be granted as this Honourable Court may deem
appropriate.’
[6]
Interim relief was granted to the Applicant by Chetty J on 23
November 2015 in the following terms:
‘
IT IS ORDERED
1. That pending the final
determination of this application, the Applicant is entitled to
main contact with the minor child,
namely E. S., a boy, born on [...]
2015, as follows:
1.1 every Tuesday and
Thursday afternoon from 14h00 to 17h00;
1.2 every weekend,
alternating on a Saturday and a Sunday from 08h00 to 13h00;
2. That in order for the
Applicant to exercise his contact with the minor child as provided
for in paragraph 1 hereof, he or his
mother, L. R., shall collect the
minor child from the Respondent’s home at the commencement of
such periods, and either the
Applicant or his mother shall return the
minor child to the Respondent’s home at the conclusion
thereof.
3. That the Office of the
Family Advocate, Durban is hereby requested to conduct an enquiry and
compile a report, setting out therein
its recommendations regarding
the relief sought by the Applicant in the Application, and in
particular whether the Applicant should
be declared a co-holder of
full parental responsibilities and rights, and the extent to which he
should be entitled to exercise
contact with the minor child, as
sought by the Applicant in the Second Order Prayer herein below;
4. That the costs be
reserved for determination by the Court hearing this application in
relation to the relief sought in the Second
Order prayed.
5. That the Respondent be
granted to deliver her answering affidavit on or before 7 December
2015, and the Applicant to file her
reply on or before 21
st
December 2015.’
[7]
After the exchange of affidavits and once the family advocate had
filed its report Masipa J on 30 May 2017 granted an order
in the
following terms
‘
1. That this
application is referred for the hearing of oral evidence on:
1.1 Whether the Applicant
has met the requirements in S 21 (1) (b) of the Children’s Act
No. 38 of 2005;
1.2 Whether the parties
concluded a sperm donor agreement, and if so, what are its
ramifications;
1.3 Whether it is in the
minor child’s best interests that the Applicant be assigned
rights of contact with the minor child
in terms of S 23 of the Act,
in the event of the court determining that the Applicant has not met
the requirements of S 21 of the
Act.
2. That pending the final
determination of these proceedings, the Applicant shall exercise
contact with the minor child as follows:
2.1 Every Tuesday and
Thursday from 14h00 to 17h00;
2.2 Every weekend,
alternating on a Saturday and a Sunday, from 9h00 to 17h00;
2.3 Sharing of the minor
child’s birthday;
2.4 On father’s
day, from 09h00 to 17h00, with mother’s day to be spent with
the Respondent.
3. That terms of para. 2
of the order of this court granted on the 23 November 2015 under case
No. 11830/2015 shall remain in place
pending the final determination
of this matter.
4. That the costs of are
reserved.
5. The matter is ready to
be enrolled for oral evidence and case flow is not necessary.’
[8]
Having heard the oral evidence of the Applicant and the Respondent on
the above issues this judgment now deals with what relief
should
appropriately be granted.
[9]
The following is common cause:
(a) There is a dispute
between the Respondent and the Applicant as to whether the Applicant
has acquired full parental responsibilities
and rights in respect of
E. in terms of s 21(1)(b) of the Act;
(b) The Applicant and the
Respondent met in 2007 and became romantically involved from January
2011, with the Respondent moving
into the Applicant’s flat
sometime thereafter. She moved back to her accommodation when they
‘broke up’ at the
end of June 2012;
(c) They thereafter would
spend some time together, although the Respondent contends that it
was not as ‘boyfriend and girlfriend’;
(d) Two years after they
had broken up and on or about 25 May 2014 the Respondent asked the
Applicant if he would impregnate her
through natural insemination.
The Respondent told the Applicant that she wanted her child to know
the identity of its biological
father because, as she put it, it
would be psychologically difficult for a child to not know the
identity of its biological father
(as would be the case if an
anonymous sperm donor was used);
(e) The Respondent said
to the Applicant that there would be no obligations on his part
financially (she also maintains ‘or
legally’, although
her affidavit referred to ‘or otherwise’) This is
disputed by the Applicant who states that
the Respondent said that
should the Applicant ‘later in life’ regret not having a
child, he could have a relationship
with his biological child. The
Applicant’s version is further that the Respondent informed him
that if he agreed to father
a child for her, he should understand
that there would be no obligation on his part to co-parent the child
but if the Applicant
chose to be involved in the child’s life,
she would accept that decision.
(f) After the Respondent
fell pregnant the Applicant attended certain consultations with her
at the rooms of the obstetrician/gynaecologist
Dr Berios. The first
appointment which the Applicant attended was apparently on Friday, 26
September 2014 during which, in the
words of the Respondent, she saw
him display happiness ‘with regards to the pregnancy’;
(g) The Respondent’s
medical aid did not cover the costs of all these visits. The
Applicant contributed towards at least the
costs of some of these
visits, consultations and also scans;
(h) The Applicant and
Respondent also attended ante-natal classes together. This was at the
suggestion of the Applicant;
(i) During October 2014
the Applicant expressly indicated that he would like to take on
responsibilities towards the child. The
Respondent explains that this
led to arguments as there were differences of opinion as to the level
of responsibility the Applicant
needed to take on in order for her to
agree to him co-parenting with her;
(j) During the pregnancy
the Respondent asked the Applicant if there were any names for the
child that he liked so that she could
consider them. The Applicant
sent through some names. These did not however meet with her
approval;
(k) When the minor
child’s birth was registered, the name of the Applicant was
reflected thereon as the father of the child;
(l) On the Respondent’s
discharge from hospital, the Applicant stayed with her at her place
for at least that day. The Applicant
maintains that he stayed there
for ‘a few days’, whereas the Respondent says she ‘cannot
recall if he stayed
longer than one night’;
(m) After E.’s
birth the Respondent would allow the Applicant to have contact with
him but always on her terms and with specific
instructions;
(n) The Respondent
concedes that she gave the Applicant a set of keys to get into her
flat when he visited, given that the buzzer
would wake E. if he rang
the bell to be admitted to the flat, and further that she would not
have to stop breast feeding to go
outside the flat to open the gate
for the Applicant;
(o) On Friday 22 May and
Friday 19 June 2015 the Respondent took the minor child to visit the
Applicant’s mother;
(p) The Applicant took E.
with him on occasions. The Respondent however complains that the
Applicant returned E. later than she
had asked on most visits and
that he did not respect her wishes as to E.’s diet;
(q) The Applicant
accompanied Respondent when she took E. to consult with a
paediatrician on two occasions;
(r) The Respondent would
allow the Applicant to visit E. in the evenings but would insist that
he be at her home before 17h45, otherwise
he should not come. The
Applicant’s time with E. would however be limited as the
Respondent would shortly after his arrival
require that he take E.
immediately for a bath and after his bath she would take him from the
Applicant and breast feed him before
he would fall asleep;
(s) On weekends the
Respondent would allow the Applicant to have contact with E., but on
her terms and when she felt it was appropriate;
(t) From the six month
check up with the paediatrician, the Respondent refused to allow the
Applicant to attend the consultations
and also failed to give him any
feedback;
(u) The Applicant has
also offered to pay maintenance in respect of E., but these payments
have been returned. He has deposited
these payments into a fund
for the benefit of E.;
(v) Because of the
ongoing strife between them, the Applicant suggested that a parenting
plan be concluded. On 19 July 2015
the Respondent in an email
to the Applicant recorded
‘
please go ahead
and get the parenting plan in place, seeing as you feel that it is
most important right now. When I know how often
you are supposed to
visit and when and hours appropriate from an expert, that would be a
starting point for us to plan your next
visit.’
(w) On 15 September 2015
the Respondent addressed an email to the Applicant recording,
‘
as mentioned at
the family advocate mediation, when I asked you to help me try for a
child, it was with the understanding that there
were no obligations
on your part, and I assumed all responsibility for the child, and
that the nature of your involvement would
be by future agreement.
From what I have researched, the appropriate agreement in our case
was a Known Donor Agreement, rather
than a parenting plan. I have
attached a Known Donor Agreement for you to sign, which has been
changed slightly seeing as it is
only being signed after the fact’;
(x) The Respondent has
also posted photographs on Facebook depicting the Applicant at a
father’s day event;
(y) The Respondent agrees
that by agreement they each paid 50% of the doctors’ bills and
certain other expenses. The hospital
bill for the birth was paid by
her medical aid. The Applicant contends that he paid almost
R41 000.00 to the Respondent in
respect of laying in expenses.
She disputes the amount and says it was R24 000.00 that was paid
to her, but not in respect
of laying in expenses, but R4 000.00
for each month of her maternity leave. She says it was a gift to her.
(z) The Respondent
records that notwithstanding the animosity between her and the
Applicant she still allowed him to take E. out
at least two hours
every week unsupervised, her intention being to foster a relationship
between E. and the Applicant as his biological
father, and to act in
E.’s best interests in the long term
[10]
Based on the aforesaid common cause facts, the Applicant would
ex
lege
and in terms of the Act qualify to be recognised as a parent
of E. with the rights also to reasonable contact with E..
[11]
The Respondent however contends that these
sequelae
, which
would normally follow by operation of law, should not follow in the
case of E. and the Applicant because she and the Applicant,
prior to
conception of E., concluded a ‘known sperm donor agreement’.
This agreement would have the result that these
legal consequences do
not follow, and that the Applicant was simply a sperm donor with no
rights, save for such concessions regarding
contact as she may in her
discretion permit from time to time. She contends that although such
an agreement is not expressly recognised
in terms of the Act and
would be novel in our law, it is an increasing common type of
agreement internationally, and also in this
country. She describes it
as consistent with the constitutional rights of a mother to dignity
and sexual preference, and to choose
single motherhood as a chosen
family structure. It would free her from any need to consult with the
Applicant on matters specified
in the Act on which parents would
normally consult, and the Applicant would not acquire rights which
might conflict with her exercise
of those rights in regard to E.. She
argued that the law should develop accordingly.
[12]
The Respondent also hinted that certain provisions of the Act might
be unconstitutional. When her answering affidavit was filed
she was
still represented by attorneys. Rules 10A and 16A should have been
complied with in the event of any constitutional challenge.
They were
not complied with, nor has the Minister of Justice, who is the
Minister responsible for the administration of the Act
been cited as
an interested party. Accordingly, it would be improper for me to
consider any constitutional challenge to the provisions
of the Act.
[13]
The ‘known sperm donor agreement’ contended for by the
Respondent would be an innominate form of contract. The
terms thereof
would have to be established on a preponderance of probabilities.
[14]
Mrs Sponneck for the Applicant, has submitted that the Act does not
recognise such a type of agreement.
[2]
She accordingly submitted that a ‘known sperm donor agreement’
does not have any validity in our law.
[15]
I am not persuaded that this is necessarily so. It certainly appears
to be a novel issue whether such an agreement may be recognized
in
our law. I however did not have the benefit of detailed argument as
to the lawfulness of such a type of agreement, as the invalidity
or
otherwise of such an agreement, assuming one was proved factually,
had not been identified as a separate discrete legal issue.
Any such
enquiry when it occurs would obviously have to pay regard to the best
interests of the minor child and also whether the
recognition of such
an agreement might possibly be
contra boni mores
.
[16]
In what follows in this judgment I shall assume in favour of the
Respondent, without deciding the issue that a ‘known
sperm
donor agreement’ can be concluded validly in our law and that
it could have the effect that the usual rights and responsibilities
which the Act awards to fathers/biological fathers, may be varied.
[17]
As to whether such an agreement has been proved, the period from when
the Respondent asked the Applicant to impregnate her
and while he
reflected on that request (which was for some two weeks) before he
agreed, is of particular significance.
[18]
Respondent contends that her intention was that the Applicant would
have no financial obligation in respect of the child if
she would
fall pregnant, and also that the Applicant would have no legal
rights. She however wanted her child to know the identity
of his
father. She also considered that the child should also ‘perhaps
have a relationship’ with his father ‘later
in life’.
She was not specific about what ‘later in life’ might
mean. Applicant in turn testified that the Respondent
had said that
there was no obligation on his part, that his name need not be
reflected on the birth certificate, that he would
not be required to
contribute financially if he so chose, but that he could have a
relationship and see the child if he wanted
to. The Applicant was
specific that the Respondent at no stage ever said that he would
relinquish any rights he would enjoy in
law to E.. His interpretation
of the situation accordingly was that he could choose the level of
involvement he would have in his
child’s life. There was no
discussion as to what would happen if he elected to be involved with
his child. The Applicant
understood and assumed that he would have a
normal relationship with his son, indeed in agreeing to father the
child he had harboured
the hope, as a distinct possibility, that he
and the Respondent might get together again.
[19]
The Respondent maintains that she had said to the Applicant that he
would have no financial obligations and no legal rights.
The latter
is disputed. She is also very critical of what she perceives as a
lack of commitment to E. on the part of the Applicant
during stages
of her pregnancy. For example she drew attention to the Applicant’s
failure to advise his mother of her expected
grandchild, a general
lack of enthusiasm or jubilation on the part of the Applicant in her
having a baby, and other conduct on
his part which she claims showed
a lack of commitment to parenthood.
[20]
The Respondent however conceded that the Applicant accompanied her on
visits to the obstetricians, to a 4D scan, that she accompanied
him
at his insistence to ante-natal classes, that he paid certain
expenses in respect of her pregnancy and confinement, that he
was
present at the birth of E., and that he took her and E. back to her
flat on being discharged, and spent at least one night
there.
[21]
In so far as it concerns her criticisms of the Applicant’s lack
of commitment or dedication one, as she puts it, would
expect from a
biological father who wished to be a parent, the Respondent clearly
has subjective expectations which the Applicant
in her view, failed
to measure up to. In my view what the Applicant did contribute and
commit to, even if only based on the evidence
of the Respondent
alone, clearly satisfies the level of commitment required by the Act
to confer rights in respect of E. on the
Applicant as a single father
pursuant to the provisions of s 21.
[22]
Prior to E.’s birth, the Respondent invited the Applicant to
suggest possible names for the child. After E.’s birth,
the
Respondent registered his birth and on the birth certificate had the
name of the Applicant reflected as his father (she explained
that
this was preferable to E.’s father being reflected on the birth
certificate as ‘unknown’, although she might
have
preferred to have left the space for the father’s name simply
blank).
[23]
The Respondent also testified that the Applicant and his mother
visited frequently and had contact with E..
[24]
The dominant impression I was left with from her evidence was that
she allowed contact between the Applicant and E. if for
no reason
other than that she recognised this as being in E.’s best
interest. Both the Respondent, as also the Applicant,
impressed me as
very sincere persons.
[25]
Matters would have continued along that trajectory. There was mention
made in the emails of concluding a parenting plan, which
would have
introduced greater certainty in their lives. Never were there any
suggestions, whatever contextual insignificance
the Respondent
sought to attach thereto, which met with a blanket refusal or a
reminder from the Respondent that the Applicant
had no rights because
of the terms of a ‘known sperm donor agreement’ excluding
such rights. The only explanation from
the Respondent is that she was
wanting to see how things developed and whether a point might be
reached where the conduct of the
Applicant would measure up to her
expectations and be deserving of the parenthood of E.. But this would
be for her to determine.
[26]
Although the Respondent viewed the Applicant simply as a sperm donor
(a term she preferred not to use), her first reference
to their
alleged agreement being a ‘known sperm donor agreement’
in those terms, was in the email referred to above,
after she had
done some research and reading on the internet subsequent to the
birth of E.. At that stage she also had down loaded
a draft written
agreement which she amended to take account of the fact that it would
not be executed pre-conception, but post
birth. That draft was
however never signed.
[27]
Although the Respondent sought to explain the greater involvement
which she allowed to the Applicant, to be due to her wanting
to act
in E.’s best interest, and some feelings of pity she had for
the Applicant and his mother as they did not have a child
and
grandchild, her conduct is of course also consistent with the version
of the Applicant that she had offered that he would not
have any
financial obligation towards her and E., but that he could elect to
involve himself in E.’s life.
[28]
Matters probably would have continued and improved along that path of
voluntarily increasing the involvement of the Applicant
in E.’s
life had it not been that the Applicant obtained legal advice as to
his position in law, resulting in correspondence
being exchanged,
which the Respondent viewed as formulated with a particular legal
outcome in mind. She questions how anyone resorting
to legal
processes, which she described as intimidatory, could be suitable for
parenthood.
[29]
Although not a commercial contract, the manner in which the parties
conducted themselves after the alleged conclusion of the
known sperm
donor agreement is not without significance. On probability, the
parties’ subsequent conduct is more consistent
with the
Applicant’s version than the Respondent’s version. One
may pose the rhetorical question as to why a parenting
plan was even
to be considered if the Applicant would not be a ‘parent’.
The explanation which the Respondent tenders
is that she was
considering whether the Applicant might measure up to a standard
where she might consider him suitable for parenthood.
That
explanation is however in itself problematic, because if such a stage
was reached it would alter the family structure of a
single mother,
which is what she had in mind, it would affect the ‘critical
time’ she and her family would have with
E., and it probably
would also affect the extent to which she would have to consult the
Applicant in regard to matters affecting
E..
[30]
The legal consequences which would follow
ex lege
on E.’s
conception and birth are those provided for in the Act. The onus is
on the party alleging that there was an agreement
which would produce
different consequences to that provided in the Act, to prove such an
agreement and its terms on a balance of
probability. The respective
versions of the parties in this regard are mutually destructive. At
best for the Respondent, the probabilities
of their respective
versions are neutral, although as indicated above, I consider the
Applicant’s version to be the more
probable. Credibility is
also at best for the Respondent evenly balanced, although once again
as I have pointed out above, the
description of the alleged agreement
as a ‘known sperm donor agreement’ only occurred after
she had conducted further
research, post the birth of E. and during a
time when the Respondent had experienced problems with and had to
abort an overseas
trip. This suggests that her reliance on a ‘known
sperm donor agreement’ might be somewhat of an afterthought.
[31]
The Respondent has not in my view discharged the onus which is upon
her to prove such an agreement, or to contradict the Applicant’s
version that there was no agreement varying the normal legal
consequences which would flow from the application of the provisions
of the Act. The Applicant has accordingly acquired full parental
rights and responsibilities in respect of E. in terms of section
21
of the Act.
[32]
In reaching the above conclusion I have not had any regard at all and
have made no reference to comments in the family advocate’s
report. This was deliberate as the Respondent was critical of
various findings by the family advocate. I have however noted
from
the investigations by the family counsellor, that no adverse comments
were made regarding the Applicant exercising contact
with and having
other parental rights to E..
[33]
It is not in dispute that the primary residence of E. should be with
the Respondent, and an order should follow in those terms.
[34]
In defining the extent of contact the Applicant may exercise to E. I
am guided only by the best interests of E., which are
paramount.
[3]
I have adopted a cautious approach where necessary.
[35]
The Applicant and the Respondent will have to walk a long way of
healing, in the best interest of E.. I can only implore them
and
their respective extended families to do so in his best interests.
Their respective love for E. can make that possible. I was
encouraged
in my belief in this regard by the Applicant abandoning his prayer
for costs notwithstanding him having been successful.
[36]
E.’s interests are absolutely paramount. They will be best
served, even with E. having to move between two homes, by
an order
where he can move between the Applicant and the Respondent happily
knowing that he is loved unconditionally by both his
parents in their
respective unique ways.
[37]
I hope to contribute to that result by the contact regime set out
below which will be phased in over time. It is based on the
particular circumstances of this case and how I believe the best
interest of E. can be served best. If problems are encountered
at any
stage which judged objectively impact negatively on E., then I hope
the parties will co-operate jointly to address and overcome
any
possible temporary setbacks. With a positive spirit of co-operation
in E.’s best interest I believe that E. will only
benefit.
[38]
The order I grant is as follows:
1. The Applicant and the
Respondent are declared to be co-holders of full parental
responsibilities and rights in respect of the
minor child, E. S., a
boy, born on [...] 2015 (‘E.’);
2. The primary place of
residence of E. shall be with the Respondent;
3. The Applicant is
entitled to maintain contact with E. as follows:
3.1 from when E. turns 3
years of age until 1 January in the year in which he commences his
Grade 1 schooling:
3.1.1 During school
periods on every Wednesday, from 12h00 (or after crèche if
applicable) to 08h00 on Thursday morning (or
before crèche if
applicable);
3.1.2 During school
periods on every alternate weekend from a Friday at 12h00 (or after
crèche if applicable) to a Sunday
at 16h00;
3.1.3 for half of the
school holidays, with the long school holidays in June/July and
December/January each year to be shared equally
between them, on a
one week rotational basis;
3.1.4 every alternate
public holiday;
3.1.5 on Christmas day
alternating each year from 08h00 to 13h00, and from 13h00 to 18h00;
3.1.6 on the weekend of
Father’s Day, from 08h00 on the Saturday to 16h00 on the
Sunday,
3.1.7 with Mother’s
Day to be spent with the Respondent;
3.1.8 on the minor
child’s birthday, for a minimum of 4 hours;
3.1.9 on the Applicant’s
birthday, for a minimum of 4 hours, with the Respondent’s
birthday to be spent with her;
3.1.10 any further
contact periods by agreement between the parties.
3.2 from 1 January of the
year in which E. commences his Grade 1 schooling:
3.2.1 During school
periods on every Wednesday, from after school to 08h00 on Thursday
morning before school;
3.2.2 During school
periods on every alternate weekend from after school on a Friday to
before school on a Monday;
3.2.3 every alternate
public holiday, save in the event of a public holiday falling before
or after a weekend and thus creating
a long weekend, in which event
the party exercising contact with the minor child for that weekend
shall include the said public
holiday;
3.2.4 for one half of all
of the minor child’s long and short school holiday periods,
with the school holiday period to commence
from after school on the
last day of term and end before school on the first day of the next
term;
3.2.5 on Christmas Day
alternating each year from 08h00 to 13h00, and from 13h00 to 18h00;
3.2.6 on the weekend of
Father’s Day, from 08h00 on the Saturday to 16h00 on the
Sunday,
3.2.7 with Mother’s
Day to be spent with the Respondent;
3.2.8 on the minor
child’s birthday, for a minimum of 4 hours;
3.2.9 on the Applicant’s
birthday, for a minimum of 4 hours, with the Respondent’s
birthday to be spent with her;
3.2.10 any further
contact periods by agreement between the parties.
4. No order is made as to
costs.
___________________________________
Koen
J
Appearances
Counsel
for Applicant: Ms M A Konigkramer-Sponneck
Applicant’s
Attorneys: Strauss Daly Attorneys
Tel.:
031 570 5600
Ref.:
T. OFFERMANN/HS/ROO207/0001
For
the Respondent: In person (Ms L S.)
Tel.:
[...]
[1]
Specifically, on the
common cause facts, the Applicant is not biologically related to E.
by reason only of being a gamete donor
for purposes of artificial
fertilization. Section 1 of the Act defines ‘artificial
fertilisation’ to mean ‘the
introduction, by means other
than natural means, of a male gamete into the internal reproductive
organs of a female person for
the purpose of human reproduction,
including — (a) the bringing together of a male and female
gamete outside the human body
with a view to placing the product of a
union of such gametes in the womb of a female person; or (b) the
placing of the product
of a union of male and female gametes which
have been brought together outside the human body, in the womb of a
female person’
[2]
The Act for example
recognises surrogacy agreements and defines the rights and
obligations arsing therefrom – see Chapter
19 of the Act.
[3]
Section 9 of the Act.