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[2018] ZAECMHC 41
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Mbiko v N.T and Others (07/2018) [2018] ZAECMHC 41 (7 August 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
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION - MTHATHA)
CASE
NO. 07/2018
Heard
on: 03 May 2018
Date
delivered: 07 August 2018
In
the matter between:
BAXOLELE
ICHOLAS
MBIKO
Applicant
And
N
T
First
Respondent
A
T
Second
Respondent
N
T
Third
Respondent
JUDGMENT
MAJIKI
J:
INTRODUCTION:
[1]
The best interests of the minor child are paramount, the minor
child’s parents herein ought to know better, by virtue
of their
legal backgrounds. As the Children’s Act 38 of 2005 (the Act)
dictates, as co-holders of parental responsibilities
who profess to
love and want the best for their minor child, they ought to put aside
their differences characterised by need
for individual triumph,
instead make every attempt to agree on providing the minor child with
a loving environment conducive to
the provision to the minor child of
a stable functional upbringing characterised by exposure to best
learning facilities, where
the minor child can holistically grow to
be the best he can be;
In
this matter the applicant approached court by way of urgency seeking
the following reliefs in the main;
1.
Declaring respondents’
conduct of denying the
O
T
,
the minor child the right to access to education unlawful,
unconstitutional and violation of the minor child’s
Constitutional
Rights as entrenched in both the Constitution of
South Africa and the Children’s Act;
2.
Directing the respondents
release the minor child to the applicant for the minor child start or
resume with his schooling career
or education at Holy Cross Education
Centre where he was enrolled in 2016 before he was taken by the
respondents;
3.
In the event the first
respondent or any of the respondents have moved the minor child to
another place, town and or province for
any reasons known to them,
such respondent/s be directed to fetch the minor child immediately
and have him released to the applicant
from wherever he is placed and
only for schooling purposes;
4.
The respondents be
restrained and directed not to interfere with the minor child
in any manner whatsoever during his stay
with the applicant, during
the period enrolled for his schooling or education period at Holy
Cross Education Centre or any school
chosen by the applicant;
5.
The respondents be
directed to release and hand over to the applicant the minor child’s
birth certificate, clinic card, clothes
and all the necessary
documentation to enable the child to be enrolled or resume his
learning career at Holy Cross Education Centre;
6.
The Family advocate be
appointed to investigate and assess as to what will be in the best
interest of the minor child as far as
education, primary resident,
contact, caregiver and all the other aspect of life as concerned.
7.
The applicant be granted
leave to bring application for full custody of the minor child after
the Report of Family Advocate has
been released or completed by the
Family Advocate and other ancillary reliefs.
[2]
The matter was enrolled for hearing for an interim order on 16
January 2018. The application is opposed by the respondents,
who are the minor child’s biological mother (first respondent),
the father and mother of first respondent, (second and third
respondents respectively).
[3]
On the date of the hearing of the interim relief, the applicant was
granted leave to file his replying affidavit within twenty
(20) days
from that date, which according to this court’s directive was
supposed to have been filed by 15 January 2018 already.
The
matter was removed from the roll for that purpose.
[4]
After the applicant failed to file the replying affidavit, on 16
February 2018 the respondents applied for the hearing of the
application and was duly allocated a date in the opposed court on 3
May 2018. On 10 April 2018, the applicant belatedly filed
his
replying affidavit.
[5]
The issue central to the seeking of the orders on an urgent basis was
that the minor chid was at the time of the launching of
the
application out of school. The applicant wanted the minor child
to be released or placed in his care so that he could
resume
schooling, when schools re-opened on 17 January 2018.
FACTS
[6]
It is common cause that the applicant, an admitted advocate of this
court, and the first respondent, an admitted attorney of
the North
Gauteng High Court, are biological parents of the minor child born on
[…] July 2011. They are co-holders
of parenting
responsibilities and rights as defined in section 19 and 21 (b) of
the Act. The minor child had been staying
with the first
respondent’s parents, except for some brief stay the minor
child had with his biological parents in 2014 and
again with the
applicant for sometime towards the end of the year in 2016.
[7]
The circumstances relating to the maintenance, visits, residence of
the minor child, amongst others are in dispute between the
applicant
and the first respondent, especially after the termination of their
relationship towards the end of 2014 or 2015.
[8]
The respondents raised points of law in the application by the
applicant, two of those related to lack of urgency and no-compliance
with section 33(2) and (5) of the Act.
URGENCY
[9]
Urgency is still an issue in the application. The respondents had to
file their answering affidavit within truncated time periods
as
directed by this court. It is therefore necessary to determine
whether it was necessary for them to be brought to court
on such
truncated time frames. According to the applicant the matter
was urgent because it involved the violation or infringement
of a
child’s right to education. The schools were opening and the
minor child had not been schooling in 2017. Even as at
the date of
hearing it was still urgent but not to the same degree as it was in
January 2018. Further, there is a potential
of violence, as on
4 January 2018 the first respondent bit him in his hand, during an
argument about his attempt to exercise his
right of having access to
the child for a few days.
[10]
According to the respondents, the minor child was at Fairview primary
school in 2017. They attached the certified copies
of school
reports reflecting the name, cycle term period, grade, number
of days absent in that period, dates of closing and
opening of
schools and comments about the child progress by the educator and the
principal.
The first report is for cycle
term 1, dated 24 April 2017.
The second report is for cycle
term 2 dated 30 June 2017.
The third report is for cycle
term 3 dated 09 October 2017
The last report is for cycle
term 4 dated 04 December 2017.
The first respondent in her main
opposing affidavit stated that the minor child would have re-opened
the schools in the same school
on 17 January 2018.
[11]
It is also in dispute as to how the first respondent ended up biting
the applicant’s finger on 4 January 2018.
According to
applicant he was bitten as he was being accompanied by the minor
child. On his way out of respondent’s’
gate,
without altercation the first respondent grabbed and pulled the minor
child and bit his finger. According to the first
respondent she
and the applicant had a disagreement about applicant taking the minor
child away. She held the minor child
as the minor child was
about to board the applicant’s vehicle. The
applicant held her tight and she bit him in
order to release herself
from the applicant’s grip. It is also in dispute as to
how the applicant ended up having no
contact with the minor child,
during the year 2017.
[12]
The applicant, in reply stated that the annexed copies of school
reports were cover pages, with no name of the minor child.
This
is clearly incorrect, all relevant information regarding the minor
child and his progress is contained in the annexures.
The issue
of the minor child not being at school is therefore put to rest.
There was no reason for the applicant to believe
that the child’s
right to education was being infringed. As for the quality of
education and the issue of where the
minor child would access better
education, that could be part of a parental plan agreement between
the parents. However,
that is not the case the applicant
brought to court. In the light of this and the dispute with
regard as to whether
there is a potential of violence, I have
to agree with the respondents that the applicant failed to establish
that the matter was
urgent As regards to any difficulties in
reaching out to the minor child and intervening in any perceived
unsatisfactory
schooling, the applicant could have sought the
assistance of the family advocate, phycologist or social workers as
provided in
section 33(5) of the Act, so that he and the first
respondent could be assisted with agreeing to a parental plan.
COMPLIANCE
WITH SECTION 33(2) AND 5
[13]
With regard to the applicant’s failure to first approach the
family advocate before going to court, section 33(2) provides:
“
If the co-holders of
parental responsibilities and rights in respect of a child are
experiencing difficulties in exercising their
responsibilities and
rights those persons before seeking the intervention of a court, must
first seek to agree on a parenting plan
determining the exercise of
their respective responsibilities and rights in respect of the
child.”
Section
33(5) provides:
“
In preparing parenting
plan as contemplated in subsection (2) the parties must seek –
(a)
The assistance of
a family advocate, social worker or psychologist or
(b)
Mediation through
a social worker or other suitably qualified person.”
[14]
The respondents objected, correctly in my view, to the handing up of
a letter during the hearing of the matter, seeking to
confirm that
the applicant has after the launch of the application, approached the
office of the family advocate, for assistance.
Furthermore, the
applicant did not need to seek an order of court in order to invoke
the involvement of the office of the family
advocate, as he sought to
do in his prayers in the notice of motion. The provisions of
these sections clearly indicate that,
should co-holders of parental
rights experience difficulties, they must seek to agree on a parental
plan before coming to court
and must seek the assistance of the
relevant officials.
[15]
The reasoning behind this is not difficult to understand. The
court, is indeed the upper Guardian of all minors, however
court
procedures in their nature are costly, cumbersome and are usually
lengthy and may be emotionally draining, in particular,
to children
who have reached the understanding age. The Act wants them to
be approached as a measure of last resort.
Even if the
applicant was of the view that the matter was urgent, the said
offices could have been engaged and asked to expedite
matters and
only when that yielded no results within the desired timeframe, would
such, perhaps, be a justification to approach
court.
In
the light of the success of these two points
in
limine
, it is not
necessary to deal with the rest of the issues herein.
In
the result.
The
application is hereby dismissed with costs.
_________________________
B
Majiki
Judge
of the High Court
Applicant
in person: Mr B N Mbiko
Kunene
Location
MTHATHA
Attorneys
for the respondent: Mr Mpeto
Instructed
by: Messrs. Graham Mpeto & Associates
No.
26 Madeira Street
MTHATHA