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[2016] ZAECMHC 33
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M.A.N v L.M.M; In re: A.S.K.M (1278/2016) [2016] ZAECMHC 33 (5 July 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE HIGH COURT, MTHATHA)
CASE
NO: 1278/2016
In
the matter between:
M.
A. N.
Applicant
and
L.
M. M.
Respondent
IN
RE:
A.
S. K. M.
The
minor Child
[Born
on [......] 2005]
JUDGMENT
MBENENGE
J:
[1]
This case is a scramble between the applicant and the respondent for
the custody of their minor daughter, A. S. K. M. (A.),
born on
[......] 2005. The applicant and the respondent are former
lovers. Since A.’s birth, the parties have
been resolving
their differences, regarding who, at a particular point in time,
should be custodian parent. The papers reveal
that antagonism
and conflicting interests best the parties when, from time to time,
custody between them.
[2]
Stripped of verbiage, the common cause facts of this matter are as
follows. The applicant and respondent met in Cape Town,
where
they lived together for approximately one and a half years, during or
about 2004. At the time of parting ways, the
respondent was
pregnant with A.. Upon her birth A. continued residing with the
respondent and her family in Mthatha until
she was almost three
years. The applicant contributed towards A.’s maintenance
and accessed her few times a year.
[3]
Thereafter, the applicant became custodian parent for about three and
a half years, in Cape Town, with the respondent in turn
exercising
reasonable rights of access to A., during school holidays. A.
attendant crèche at this point in time.
During this bout
the respondent would pay for A.’s flight tickets to Mthatha,
whilst the applicant would pay for the return
air ticket to Cape
Town. On some occasions the applicant would drive A. to and
from Mthatha. The primary needs of A.
were met by the
applicant. The respondent was part of A.’s life,
contributing towards her medical aid costs, whilst
the respondent
bore responsibility for all other costs pertaining to A..
[4]
The custody of A. passed from the applicant to the respondent, during
December 2011. During the ensuing year, 2012, A.
was enrolled
at G. K. School, Mthatha, where she passed grade 1 in 2012, and grade
2 in 2013. The applicant accessed A. whilst
she stayed with the
applicant during this period.
[5]
Meanwhile, the applicant relocated to Johannesburg. A.
resumed staying with the applicant at the beginning of 2014,
and
attended school, initially at Eden College, but was later moved to
another school, Rembrandt Park School, Johannesburg (hereinafter
referred to as Rembrandt School).
[6]
During the Easter vacation, 2016, A. visited the respondent in
Mthatha. The understanding was that A. would return to
Johannesburg at the end of the Easter holidays. That, however,
did not come to pass, and resulted in the applicant, who felt
shortchanged, urgently seeking and obtaining a
rule
nisi
on
15 April 2016 which called upon the respondent to show cause why she
should not forthwith deliver A. into the custody of the
applicant
“
along
with all of [her] things as are in her possession
.”
[7]
Upon a reading of the founding affidavit, by which the applicant must
stand or fall and, as far as it could have been ascertained,
the
application is founded principally on the contention that the
respondent has in effect taken the law into her own hands and
varied
the existing custody arrangement with the applicant without obtaining
a court order, for reasons best known to her.
The applicant
contends that the only reason furnished to him as to why A. would not
be returned to his custody was the fact that
A. was unhappy.
According to the applicant A. has, for the past two years, not
verbalized any intention to reside with the
respondent or that she
experienced unhappiness in staying with him.
[8]
The applicant has further averred:
“
[A.]
has blossomed at Rembrandt primary school where she is currently
enrolled and her fees have been paid up and until the end
of the
year…It is apparent from the affidavit [received from the
school] that [A.] is doing very well at the school and
it is not in
her best interest to be uprooted.
…
Furthermore,
given the history of his matter …there is not one shred of
evidence save for the respondent’s ‘
say
so’
…that
it is not in the best interest of [A.] to reside with me of greater
moment is the fact that there is no assessment
by an independent
social worker or psychologist that is in the best interests of [A.]
to live with respondent and not with me.”
[9]
In further support of the application, the applicant seeks to rely on
an affidavit deposed to by a certain Ms R. C. M., employed
by the
applicant as a cook for A.. According to Ms M. A. has a
good relationship with the applicant. The applicant
lives in a
big house “
and
[A.] occupies the second floor of the house”
;
the applicant and A. spend a lot of time together and share a close
bond; when A. was told that she was to spend her Easter holidays
with
the respondent A. seemed sad, stating that she would prefer spending
the holidays with the applicant, but did not give reasons
as to why
she did not want to visit the respondent.
[10]
The principal of Rembrandt School has, for her part, not deposed to
any supporting affidavit. However, one of the annexures
to the
founding papers is a letter penned by the principal which states,
inter
alia
,
that A. is achieving well and will be re-admitted to Rembrandt School
when she returns “
within
a reasonable time frame
.”
[11]
The respondent, on the other hand, contends that when the time came
for A. to return to her father in Johannesburg she (A.)
refused,
begging to stay with her (the respondent) and pointing to the fact
that the environment she lived in at Johannesburg was
not a happy
one.
[12]
The circumstances which, according to the respondent, have
disqualified the applicant from being custodian have been narrated
as
follows in the respondent’s answering affidavit:
“
15.2.
The child complains that the applicant shouts at her frequently and
sometimes beats her with a belt for no apparent
reason. The
child told me that last year the father called her (after the Spring
Holidays) in October. He had the child’s
journal infront
of him and a belt and forced her to explain to him what she wrote in
her Journal that she wants to be with her
mother. He thereafter
threatened her telling her that he does not love her and that she is
the devil’s child.
This upset the child very much.
I believed this when it was told to me the minor child because he had
told me that I am inherently
evil, this I had been told when the
child was just a baby. He told me that I was a mother fucking
bitch together with my
mother and we are a family of inherently evil
people. She told the child she was not special and she will
never be special.
15.3.
The applicant does not allow her to have a phone, he crashed the
first phone I bought her on wall and has
confiscated the latest cell
phone claiming he was taking it to a psychologist at the time he
claimed he was taking the minor child
to a psychologist.
15.4.
The applicant employs Nannies to look after the child, but the
Nannies do not usually stay for long, they
quit and at the time the
child came to me for the Easter week-end the applicant is having
someone who comes to do only the washing.
Sometimes the child
is left alone, locked inside the house.
15.6.
Recently in January 2016, applicant was with the minor child and he
rolled with the car with the minor child
travelling with him. I
got to know of the accident through receiving a statement from the
medical Aid, as I am the one who
is paying the child’s medical
bills through my medical aid. The child confirmed that she was
involved in such accident
when she came to visit for the Easter
week-end in 2016. It is the second time he rolled with the
child and he never informed
me on both occasions about the
accidents.”
[13]
The respondent has further stated that the matter of returning
custody of A. to her had been the subject of discussion between
her
and the applicant;
she
had asked the applicant to return A. to her custody at the end of
December 2016, after learning about the abuse A. was being
subjected
to at the hands of the applicant, but the applicant did not accede to
that, and enrolled her at a school in Gauteng in
2016 despite her
(the respondent) having requested that she be custodian during 2016.
[14]
The family advocate, Mthatha filed a report, to which is annexed a
report compiled by a family counsellor who has concluded
that the
best interests of A. would be best served by her custody being
awarded to the respondent. The family counsellor’s
report, for which this court is thankful, is, by and large, a product
of interviews held with the parties, A. and other witnesses
who
interacted with the parties and/or A..
[15]
In her evaluation of the information supplied to her, the family
counsellor states that A. confirmed that she has a good relationship
with both parents but that she is more attracted to her mother,
although she has been living with her father and that she is scared
of her father who shouts at her. A. expressed a wish to remain
in the care of her mother, but maintain connection with her
father.
This has been her wish for the past two years. The report
has captured the essence of A.’s interaction
with the family
counsellor as follows:
“
6.3
A. is currently at Vela Primary School since 11 April 2016. The
school principal Mrs Marallier
reported that the child has settled at
school. She has made friends and she appears to be happy.
She reported that
she has just given the child some text books and
the child has caught up on her notes. The school principal
further reported
that they have Tuesday and Thursday as sport days.
A child chooses the sport she wants to be involved in. She
reported
that should they encounter any problems with the child they
will let the parent know.
6.4
A. initially reported that she does not enjoy going to school because
school is boring.
However she knows that she has to go to
school as her parents always encourage her to do so and she likes
learning. She further
reported that she enjoys being with
friends at school. She indicated that Vela is her favourite
school because she felt welcome
on her first day. She made
friends and all the teachers were good to her. She further
indicated that she was happy
because she got support from her mother,
she was always there for her. A. indicated that the school she
was enrolled in Johannesburg
was a good school; however she is more
comfortable at Vela Primary School.
6.5
A. reported that she has been enrolled at Vela on 11 April 2016.
She reported that
she did not want to return to Johannesburg and is
hoping not to have return. She further reported that her mother
requested
that she returns to Johannesburg while she had to speak to
her about it. However when she was about to leave the following
day, she saw the police and heard them [her] dream came true when her
mother let her stay. She reported that she does not
want to go
to Johannesburg because she is scared of her father and should anyone
force her she will find means to escape.
She believes that her
father loves her as a father should, but she does not feel that he
loves her by what he is doing (shouting
at her and shouting her
mother in her presence).
6.6
During the assessment, form the Child’s Voice Toolkit the “My
World Chart”
was used which indicates a child’s
attachment and feelings in respect of people significant in the
child’s life.
A. indicated that people who are closest to
her are her mother, maternal grandmother, her two cousins, maternal
grandfather, baby
cousin and her three maternal aunts. She did
not put her father on the board.
6.7
A. reported that she loves her mother. Her mother always tells
her that she is special.
She does not hurt her feelings.
She guides her, wants her to be educated and encourages her.
She spoils her and gives
her what she needs. She makes her
laugh, narrate stories to her and takes care of her and her cousins.
She further
reported that she talks and openly to her mother.
6.8
A. reported that her maternal grandmother makes her happy, she does
not get angry at her
and she does not shout at her. She teaches
her to do house chores as she does not want to sit and only watch
while others
are doing their chores. She reported that her
great grandfather tells her stories, sing for her and he wants her to
be happy
all the time. She further reported that she likes her
great-grandfather because he teaches her IsiXhosa.
6.9
A. reported that her cousin paly with her and she enjoys their
company. She plays
with them and she feels that she has a
family. The other cousin is reportedly hyper active. A.
further reported that
in Johannesburg, she is always in the house
with her father. She is lonely. She only sees friends at
school or at church.
She always watches movies on her laptop
and sometimes watches television at the neighbors as there is no
television at her home.
The neighbor confirmed that sometimes
A. watches television at her home and she sometimes assists her with
her homework.
She further reported that there are no children
of A.’s age at her house. However she sometimes sees
children playing
with A.. The helper reported that she has
never seen children playing with A. since she only works on
Wednesdays.
6.10
A. was also assessed by using the ‘Feelings Chart’ from
the ‘Child’s Voice
Toolkit’. She associated
herself with a happy face. She indicated that what makes her
happy is to be with her
mother and the maternal family. She
further reported that what makes her sad is when someone shouts at
her and when someone
tells her that he does not love her and that she
is not special. She reported that her father is the only person
who shouts
at her. Sometimes he shouts at her for nothing.
Sometimes when her father fights with her mother he comes next to her
room for her to hear when he shouts at her mother on the phone.
She said that she then becomes very hurt. She further
indicated
that she understands when she has done something wrong. A.
indicated that what makes her angry is when her father
told her that
he does not love her. She reported that her father read her
journal without her consent and she does not like
people who do not
respect her privacy. Her father used to tell her that she must
respect other people’s privacy yet
he did not respect her
privacy. Her father read her journal while she was on holiday
in Mthatha during October 2015.
She reported that in her
journal she wrote that she wants to live in Mthatha with her mother
and her father was angry with her.
She further reported that in
the journal one of her friends wrote that her father’s car is
an old model and her father was
angry. Her father denied that
he read her journal. He reported that a helper saw a paper on
the floor and gave it to
him.
6.11
A. reported that she was staying with her father for the past two
years. She reported that in
these two years, she has been
living in fear because her father always shouts at her and she cannot
tolerate it anymore.
She reported that her father loses his
temper quickly and he is too quick to blame her. She reported
that sometimes when
her books are on the floor or when she got 64%
for Mathematics, her father was angry at her and said that is not
good enough.
One time her father shouted at her when there was
a glass that was broken by another child and not her. She
reported that
she is afraid to ask him why he shouts at her because
he might lose his temper. A. further reported that subsequently
to
her father reading her journal, her father called her a devil’s
child, he does not love her and she is not special.
She also
scared to return to Johannesburg after this incident because her
father will ask her about this holiday and perhaps lose
his temper
and shout as her or hit her. She reported that sometimes her
father hit her with a wet towel, by hand or belt.
She reported
that sometimes he hit her until she cries but it does not happen
every time. The father denied that he hit her.
He
reported that he only spoke to her about the paper.
6.12
A. indicated that she told her mother while she was still doing grade
3 that she does not want to stay
with her father. However her
mother kept on postponing until she (A.) became angry. A. never
discussed with her father
that she wants to live with her mother
until her father saw her journal. She reported that she did not
tell him because she
was afraid that he will lose his temper and
shout at her.
6.13
On the day of the inquiry, A.’s father wanted to have contact
with her. They had contact
at Wimpy. According to A. she
reported that she though it would be easy to have contact with her
father. Unfortunately
it was not as she thought, as her mother
approached her to ask what she is going to eat. She reported
that her father started
shouting at her mother. She reported
that she felt so embarrassed and the centre of attraction as
everybody was watching
at her. She hid under the table and
cried. She further reported that she is still scared and hoping
that this whole
drama would come to an end. She further
reported that she is scared even to go to school because she fears
that her father
will come and take her away. She further
reported that she is having frequent headaches since that day and her
mother is
going to take her to the Doctor. She reported that
she wants to have peace with both her parents and is willing to
forgive
them for what they are doing in front of her so that she will
be able to live a normal life like other children. A. reported
that her father told her the history about her, her mother and her
father, where they come from and why they went to court referring
to
everything in his court papers and that really made her angry.”
[16]
The arduous task that I must now embark upon is deciding which parent
should be awarded custody of A.. The paramountcy
of the
interests of children has become entrenched in section 28(2) of the
Constitution of the Republic of South Africa 108 of
1996 (the
Constitution).
[1]
The
children’s Act 38 of 2005
[2]
promulgated
inter
alia
to
give effect to certain rights of children as contained in the
Constitution also embodies significant provisions on the subject
at
hand. Section 7 of the Act encapsulates the best interest of
child standard.
[3]
[17]
Section 10 of the Act is of significance. It accords every
child that is of such an age, materially and stage of development
as
to be able to participate in any matter concerning that child the
right to participate in an appropriate way and provides that
views
expressed by the child must be given due consideration.
[18]
At the hearing of this matter it was argued, on behalf of the
applicant, that the family counsellor’s recommendation
that A.
remain in the respondent’s custody, based solely on A.’s
election, is misplaced. A. is, according to
the argument
advanced on behalf of the applicant, of tender age. Changing a
custodial regime in the middle of a school calendar
year purely at
the whim of A. and without reason would be a dangerous precedent and
land itself to abuse. I disagree.
This case does not
involve adjudication of a dispute between adversaries as in an
ordinary civil case. The focus is on the
child.
[19]
It is so that the onus rests on the non-custodian parent to show that
the present situation is detrimental to the child’s
interests
and that variation of the custody arrangement would be to the child’s
advantage.
[4]
For reasons
that follow, the onus has been discharged by the respondent.
The submissions that the case is solely about
the views of A. is,
with respect, an over simplification of what this case is about.
[20]
To begin with, I am satisfied, on the strength of the reports
tendered, that A. is of an age and level of maturity to make
an
informed decision as to who she prefers to be custodian parent.
Even though she prefers staying with her mother, the reports
make it
plain that she wishes to visit her father during alternate school
holidays. There is sufficient motivation made for
these choices
in the relevant reports.
[21]
The factors adumbrated in paragraph 15 above all point to the
fulfillment of the requirements set out in sub-sections 7(1)(a)
7
(1)(c), 7 (1)(f) and 7 (1) (h) of the Act.
[22]
No suggestion has been made, and I am unable to take judicial notice
of the fact, that the education offered in Rembrandt School
is of
better quality than that offered at Vela School. In any event,
better education is one of a number of factors that
have to be taken
into account in deciding on the custody of a child.
[5]
In its broadest sense, true education is well defined as the
harmonious development of all faculties – the hand, the
heart
and the head. It is in early years in the home and in the formal
schoolwork that the mind develops, a pattern of living is
established, and character is formed.
[6]
Nor is the provision of better and spacious accommodation in and by
itself a significant factor worthy of consideration.
More often
than not, materialism fails to fulfil the needs of life; it offers a
house not a home; a plate but not appetite,
a bed but not a good
sleep. According to the family counsellor’s report the
respondent’s home environment will
provide balanced development
for A., than the lonely and apparently threatening life provided by
the applicant’s home.
That is, however, not where this
matter ends.
[23]
I have not lost sight of the fact that, especially in the case of a
young girl, the biological relationship a mother has with
a child who
she has nurtured in her body during her pregnancy and often suckled
after birth, gives rise to a special bond between
them.
[7]
[24]
In
K
v M
[8]
recognition is given of the advantages that the parent of the
same sex of the child will have as a custodian, hence a son
needs
life input and guidance from his father, whilst a daughter needs her
mother, especially during puberty and in her teenage
years.
[25]
There is also no doubt that removing A. from Vela School to Rembrandt
School in Gauteng after the lapse of such significant
period of time,
will impact negatively on A.’s academic progress. There
is nothing supportive of the fact that Rembrandt
School might still
take on A. even during the third term. On the contrary, that
school is on record as having been willing
to receive A. back if she
had returned within a reasonable time frame. The time lapse
from April to June is, in my view,
sufficiently long to cause
disruption to schooling.
[26]
For all the above reasons, the applicant’s quest to be
custodian parent must fail. He is, however, entitled to
reasonable right of access.
[27]
The family counsellor has expressed concern that the parties are
unable to communicate and make, unilateral decisions as if
the other
party did not exist in A.’s life. The papers sufficiently
point to this unfortunate state of affairs.
Because of the
change of custody dispensation it would be proper to have the family
advocate monitor the situation and report to
this court on the
exercise of custody by the respondent. This approach is not
without precedent.
[9]
[28]
Costs remain to be determined. In cases of this nature there is
no winner and no loser.
[10]
The contest was about the best interest of the child. For that
reason, it would be proper to make no cost order.
[29]
I therefore grant the following order:
1.
The rule
nisi
granted by this court on 15 April 2016 is hereby discharged.
2.
The respondent is awarded custody of A. S. K. M. (A.).
3.
The applicant shall have reasonable access to A..
4.
The family advocate is requested to monitor the respondent’s
exercise of
custody for as long as such monitoring is in the opinion
of the family advocate necessary.
5.
The family advocate is requested to report to this court on the
exercising of
custody on 09 December 2016 or before that date if
deemed necessary by the family advocate. Copies of the report
shall be
furnished to the applicant and the respondent.
6.
There shall be no order of costs.
_______________________________
S
M MBENENGE
JUDGE
OF THE HIGH COURT
Counsel
for the applicant
:
Mr J L
Hobbs
Instructed
by
: Ivan
Zartz Attorneys
Johannesburg
C/O
Zolani Gwama Attorneys
Mthatha
Counsel
for the respondent
:
Ms E N
Nyobole
Instructed
by
: Horrena
Jilata & Ass
Mthatha
Date
heard
: 14 June
2016
Judgment
delivered
: 05 July
2016
[1]
Section 28 of the Constitution
provides that a child’s best interests are of paramount
importance in every matter concerning
a child. See also
section 9 of the children’s Act 38 of 2005.
[2]
The Act.
[3]
The Section provides:
“
(1)
Whenever a provision of this Act requires the best interests of the
child
standard to be applied, the following factors must be taken
into consideration where relevant, namely –
(a)
the nature of the
personal relationship between –
(i)
the child and the parents
or any specific parent; and
(ii)
the child and any other
care-giver or person relevant in those circumstance;
(b)
the attitude of the
parents, or any specific parent, towards-
(i)
the child and
(ii)
the exercise of parental
responsibilities and rights in respect of the child;
(c)
the capacity of the
parents, or any specific parent, or of 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 on the child of any separation
from-
(i)
both or either of the
parents; or
(ii)
any brother or sister or
other child, or any other 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 effect the child’s right to maintain personal
relations and direct contact with the parents,
or any specific
parents on a regular basis;
(f)
the need for the child-
(i)
to remain in the care of
his or her parent, family and extended family and;
(ii)
to maintain a connection
with his or her family, 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 ;
(k)
the need for a child to be bought up within a stable family
environment and where this is not possible in an
environment
resembling as closely as possible a caring family environment;
(l)
the need to protect the child from any physical or psychological ham
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 degradations
ill-treatment,
violence or harmful behavior towards another person;
(m)
any family violence involving the child or a 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”.
[4]
Mc Call v Mc Call
1994 (3) SA 201
(C) at 204 I
[5]
K v M
[2007] 4 All SA 883 (E).
[6]
Ellen G White, Education, p7.
[7]
Fraser v Children’s
Court, Pretoria North & Another
1997(2) SA 261 (CC) 274;
1997 (2) BCLR 153
(CC)
[8]
Supra
;
also see
Mc Call
case (
supra
)
and
Van Pletzen v Van
Pletzen
1998 (4) SA
95
(O) at 101, wherein Hancke J, rejected the assumption that the
mother was in a better position to care for a child, but held that
the fact that the child was 4 years of age and a girl tipped the
scales in favour of the mother as she would be particularly
suitable
to serve as a role model for the child and to look after her
physical and emotional needs in the long term, including
from that
stage of her development until puberty.
[9]
Mc Call
case,
supra
,
203 and
Hlophe v
Mahllela and Another
1998 (1) SA 449(T)
at 462.
[10]
Mc Call
case,
supra,
209.