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[2016] ZAGPPHC 929
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T.L.S v V.M.L (728393/2016) [2016] ZAGPPHC 929 (30 September 2016)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
30/9/16
CASE
NO: 72839/2016
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
T.
L.
S.
APPLICANT
AND
V.
M. L.
RESPONDENT
JUDGMENT
THOBANE
AJ,
[1]
The applicant has brought an application on an urgent basis in which,
for a start, he seeks an order that the requirements relating
to
service and time periods be dispensed with. The application has two
parts to it. In Part A the applicant seeks the following
relief;
1.
That this application be heard as an urgent application in accordance
with the provisions of Rule 6(12) and that the requirements
pertaining to service and time periods be dispensed with.
2.
That pending the finalization of the relief applied for in Part B
hereof;
2.1.
both parties (the Applicant and the Respondent) retain full parental
responsibilities in respect of the minor child,
namely KS, born on
[....] 2015 (hereinafter referred to as "the minor child")
as provided for in sections 18 and 21 of
the Children's Act No. 38 of
2005 (hereinafter referred to as "the Act");
2.2
.. the Family Advocate be requested to conduct a thorough and
comprehensive investigation into the affairs and the best interest
of
the minor child and to provide this Court with a report and
recommendation regarding both parties' parental responsibilities
and
rights in respect of the minor child's primary care and the manner in
which the non-custodian parent should exercise reasonable
contact and
access in respect of the minor child;
2.3.
both parties be liable and responsible to attend to the minor child's
primary care, to be exercised
in the following manner:
2.3.1.
the minor child will reside every Thursday, Friday and Saturday with
the Applicant; and
2.3.2.
the minor child will reside every Sunday, Monday, Tuesday and
Wednesday with the Respondent;
2.4.
Both parties be responsible and liable to maintain the minor child on
an equal basis; and
2.5.
both parties retain guardianship in respect of the minor child.
3.
That Part B of the application be postponed
sine die,
on
condition that both parties are entitled to re-enroll this
application for hearing after the Family Advocate has conducted an
investigation envisaged in paragraph 2.2.
supra,
and
permission is granted to the parties to supplement their affidavits,
if necessary;
4.
That the respondent be ordered to pay the costs of this application,
including the costs consequent upon the employment
of senior counsel,
only in the event of opposition, alternatively that the costs of Part
A be reserved for final determination
in respect of Part B hereof;
and
5.
That such further and/or alternative relief be granted to the
applicant which this court deems reasonable and appropriate under
the
prevailing circumstances.
[2]
The application is opposed by the respondent. I refrain from
repeating Part B of the notice of motion in that its relevance
for
purposes hereof is limited.
Background
[3]
The following brief background is necessary;
3.1.
The applicant and the respondent became romantically involved in
2014;
3.2.
During the same year, the respondent fell pregnant and the parties
took a decision to move in together;
3.3.
I pause to indicate that the respondent also has an 8 years old son
from a previous relationship and that during the period
when the
parties moved in together, he was staying with them. It is not in
dispute that the relationship between the applicant
and the
respondent's son was a good one;
3.5.
On [....] 2015 KS was born. The parties assisted each other in
rearing him. Later a nanny was employed to take care of KS while
the
parties were in between going on with their lives and attending their
respective workplaces.
3.6.
On 21 August 2016 the parties had a serious fallout and their
tumultuous relationship was terminated. Subsequently, KS was
enrolled
at a school.
3.7.
The relationship deteriorated even more when the applicant and his
mother obtained protection orders in the
Domestic
Violence Court against the respondent, albeit interim in nature,
following an incident in which it is alleged the respondent
burst
into the parental home of the applicant, abused all and sundry and
violently removed KS.
3.8.
The respondent also obtained a protection order against the
applicant.
3.9.
Soon thereafter the parties started communicating through their
respective legal representatives. By this time the situation
between
them had deteriorated even further to a point where, according to the
applicant, he has not been allowed access to KS since
31 August 2016.
This application was therefore launched against that backdrop.
Points
in
limine
[5]
The respondent has raised the following points
in limine;
5.1.
that the applicant has failed to comply with the peremptory
provisions of
section 33
of the
Children's Act 38 of 2005
;
5.2.
that having made an undertaking to explore possible mediation, in
proceeding with this application subsequent to that undertaking,
the
applicant was abusing the court process;
5.3.
that this matter is not urgent.
Applicant's
submissions
[6]
The applicant submits that he has been present in KS's life since
birth. He submits that he supported the respondent throughout
her
pregnancy and that the birth of KS was a pleasurable experience for
him. He submits further, that the respondent has not given
KS
unconditional love, affection and attention since birth. This is so
inter alia
because the respondent was keen to return to work
and to also do gym work as soon as was possible. He states that he is
the one
who has offered comfort to KS and has always given him
attention. The fact that KS is, as at the hearing of this
application, only
20 months old, and that he was permitted to have
him sleep over at his place three nights of the week, is testimony to
the fact
that a unique bond exists between the two of them. This
bond, he submits was abruptly brought to an end by the respondent who
suddenly
terminated all contact between the applicant and KS. The
applicant is of the view that the circumstances of the access to KS
be
investigated by the Family Advocate and that a report be filed to
court. In his view, it is not in the best interest KS that the
parenting rights which he enjoyed, be tempered with and curtailed.
The applicant is seeking to have the
"status quo"
restored.
Respondent's
submissions
[7]
The respondent disputes that there is any
"status
quo".
Respondent submits that for the life time of KS, being 20 months,
there has not been a pattern of parenting to speak of which can
be
characterized as stable. The respondent while disputing that there
was a pattern of access by the applicant, states that there
was a
"flexible" arrangement in terms of which the applicant
would at times have the minor child sleep over at his place.
The
respondent is further of the view that a structured contact
arrangement between KS and the applicant was in the best interest
of
KS. The respondent submits that the contact arrangement suggested by
the applicant is not age appropriate and that it should
not be
permitted. That such contact would be disruptive to KS's stability.
His schooling and home environment will also be disrupted
and thus,
is not in KS's best interests. If KS were to be allowed to be away
for three days in a week, his relationship with his
brother will be
affected. It is submitted lastly that the parties have different
parenting styles and for that reason, that KS
should remain in the
primary care of the respondent. The respondent is further of the view
that the Family Advocate is better placed
to investigate the
circumstances under which parenting can occur and to report to court.
Issues
for
determination
[8]
The following issues are for determination;
8.1.
Whether the matter is urgent;
8.2.
The balance of points in limine raised;
8.3.
Whether the applicant has made out a case for interim relief.
Is
the
matter urgent?
[9]
A litigant that approaches court for relief on an urgent basis must
comply with
rule 6(12)(b)
of the uniform rules of court. The rule
reads as follows;
"In
every affidavit or
petition filed in support of
any application under paragraph
(a) of this subrule,
the applicant shall set forth explicitly the circumstances which he
avers render the matter urgent and the
reasons
why he claims
that he could not be afforded substantial
redress at
a
hearing in due course."
[10]
From the above it is clear that the rule has two legs to it, namely;
10.1.
Circumstances which render a matter urgent;
10.2.
Reasons why substantial relief can not be achieved in due course. The
importance of these provisions is that the procedure
set out in
Rule
6(12)
is not there for the mere taking. Notshe AJ in
East Rock
Trading
7 (Pty) Ltd and Another v Eagle Valley Granite
(Pty) Ltd and Others
(11
1
33767)
[2011]
ZAGPJHC
196
(23
September 2011) in paras 6 and 7 put it as follows:
"[6]
The
import thereof
is
that the procedure
set out in
rule 6(12)
is
not there for taking. An
applicant
has
to set forth explicitly the
circumstances
which he avers render the matter urgent. More importantly,
the
Applicant must
state
the
reasons
why he
claims that
he
cannot
be
afforded
substantial
redress
at
a
hearing
in
due
course. The
question of whether a matter is sufficiently urgent to be enrolled
and heard as an urgent application is underpinned
by the issue of
absence of substantial redress in an application in due course. The
rules allow the court to come to the assistance
of a litigant because
if the latter were to wait for the normal course laid down by the
rules it will not obtain substantial redress.
[7]
It is important to note that the rules require absence of substantial
redress. This is not equivalent to the irreparable harm
that is
required before the granting of an interim relief. It is
something
less.
He
may
still
obtain
redress
in
an
application
in due
course
but
it may
not
be
substantial. Whether an
applicant will not
be
able
obtain
substantial
redress
in
an
application
in
due course
will be
determined
by
the
facts
of
each
case. An
applicant
must make out his case in that regard."
[11]
The applicant relies on the following in seeking to show that the
matter is urgent; that as from 31 August 2016, he has been
denied
access to the minor child KS;
•
that before the above
date he was able to interact with and see KS, with whom he shared a
special bond, every single day;
•
that KS has been placed
at a school and that such an arrangement was without his consent.
•
that the sudden change in
environment is badly affecting KS and therefore that it is not in his
best interest to deprive him access
to him;
•
that he provided a safe
parenting environment for KS, prior the intervention by the
respondent.
[12]
In dismissing the applicant's reasons for urgency, while admitting
that the bond between KS and the applicant is indisputable,
the
respondent states that;
•
the environment that
prevailed was not safe for the development of KS;
•
the applicant can be
allowed contact but as proposed by her;
•
it is not in the best
interest of KS that he should sleep in different homes on different
days, nevertheless she is prepared to
subject herself to an
investigation by the Family Advocate;
[13]
The respondent contends that the matter is not urgent in that she had
from the onset stated that she was amenable to the proposal
of
mediation. On the papers and in argument before me I could find
nothing to suggest that urgency as sketched by the applicant
and
refuted by the respondent, is self created or lacks candor. The
applicant has outlined, explicitly, circumstances that render
the
matter urgent. The dispute involves a minor child and from the
picture painted by both parties it seems his life was in a matter
of
days turned topsy-turvy. I am accordingly of the view that this
matter is urgent based on the first leg of
rule 6(12)(b).
[14]
Notshe AJ continued, in dealing with the requirement of substantial
redress in
East
Rock
Trading
7 (Pty) Ltd
and Another
v Eagle
Valley Granite
(Pty) Ltd
and
Others,
supra, and said the
following;
"[9]
It means that if there is some delay in instituting the proceedings
an Applicant has to explain the reasons for the delay
and why despite
the delay he claims that he cannot be afforded substantial redress at
a hearing in due course. I must also mention
that the fact the
Applicant wants to have the matter resolved urgently does not render
the matter urgent. The correct and the crucial
test is whether, if
the matter were to follow its normal course as laid down by the
rules, an Applicant will be afforded substantial
redress. If he
cannot be afforded substantial redress at a hearing in due course
then the matter qualifies to be enrolled and heard
as an urgent
application. If however despite the anxiety of an Applicant he can be
afforded a substantial redress in an application
in due course the
application does not qualify to be enrolled and heard as an urgent
application."
I
am of the view that if the matter were to be enrolled in the normal
cause applicant would not be afforded substantial redress.
Therefore,
even on the the second leg of the test, urgency is established.
Section
33
of the
Children's Act
[15
]
The respondent contends that the applicant was under obligation to
first resort to mediation before approaching court. In her
view the
provisions of
section 33
are peremptory.
Section 33
reads as follows;
"33
Contents
of parenting
plans
(1)
The
co-holders of
parental
responsibilities and rights in respect of a child may agree on a
parenting plan determining the
exercise of their
respective responsibilities and rights in respect of the child.
(2)
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.
(3)
A parenting plan may determine any matter in connection with
parental responsibilities and rights, including-
(a)
where and with whom the child is to live;
(b)
the maintenance
of the child;
(c)
contact between
the child and
(i)
any of the parties;
and
(ii)
any other person;
and
(d)
the schooling
and religious upbringing
of
the child.
(4)
A parenting plan must comply with the best interests of the
child standard as set out in section
7.
(5)
In
preparing
a
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."
[16]
The provisions of the aforementioned section should not be read in
isolation and the reading must account for the context and
special
circumstances of this case. In
casu
the applicant enjoyed
parenting rights which the parties, although there was no formal or
written parenting plan, seemed to abide
by. It is not disputed by the
respondent, that there was interference with the "parenting
plan" that prevailed. According
to the respondent the
interference was necessary and was aimed at stabilizing the parenting
environment in the interest of KS.
The general approach in respect of
of all matters affecting children is contained in
section 6
of the
Children's Act, subsection
4 thereof provides that;
(4)
In any matter concerning
a
child-
(a)
an approach
which is conducive to conciliation
and problem-solving
should be followed and
a
confrontational approach
should be avoided; and
(b)
a
delay in any action or decision to be taken must be avoided
as far as possible.
[17]
The approach that the parties take must have due regard to the
provisions of
section 6.
I do not believe that in circumstances of
this case where the parties had already deadlocked, parenting rights
had been interfered
with and allegations and counter allegation of
domestic violence were being flung back and forth, it would have been
prudent to
resort to mediation. It is sufficient for current
purposes, if the proceedings that followed were conducted in line
with the provisions
of
section 6
(2), insulating from and not
exposing KS to any potential harm. Counsel for the respondent
referred this court to a
dicta
in
S v
J
2011
(3)
SA
1
26
(SCA) [54},
in terms of which the Supreme Court
of Appeal affirms the principle that mediation in family matters is
to be preferred and that
litigation should not be the first resort. I
agree with that dicta. I hasten to add that the two matters are
however distinguishable.
In
S
v
J
,
supra, the
parties were involved in acrimonious litigation for nearly five
years. The parties had litigated extensively in both
the Northern
Cape and Western Cape High Courts and still did not seem to find
closure. The extent of the litigation was
vast
and this
prompted the court to comment
inter alia
as follows;
[38]
That said, I would caution against
a
practice of forum
shopping even in cases concerning disputes over parenting rights
and
responsibilities. High courts should not in general be faced with
litigation requiring them in effect to set aside an order
made
in
another jurisdiction.
And
as
a
rule,
since
one is
entitled
to assume that any order has been made in the best interests
of
a
child, should those interests change over time the court
that made the initial order should be approached for
a
variation."
[18]
Not only that, the Family Advocate had been involved and had
submitted reports to court. The expert reports were however
challenged
even orders that were made by consent were not spared.
What compounded matters and regrettably, the Judge that handled the
matter
was found to have been biased. The warning therefore while
well deserved and salutary, is case specific and is not a general
rule.
Was
there an
abuse
of
the process
of
the court?
[19]
The contention that the applicant has abused process of court stems
from the fact the the respondent is of the view that the
approach to
court by the applicant was premature in that there was noncompliance
with
section 33
and also because the respondent is of the view that
the matter is not urgent. I do not deem it necessary to deal with
this contention
as I have above and in detail dealt with both urgency
as well as
section 33.
Suffice to say, I do not agree that there was
an abuse of the process of court.
Conclusion
[20]
The overarching principle in matters involving children is always,
what would be in the interest of the child. At times facts
speak for
themselves and in such circumstances it is easy for the court to
determine what it deems to be in the interest of the
child. In this
matter interim intervention is sought while the family advocate
investigates and prepares a report. There are serious
disputes about
what would be in the interest of KS. There are further contestations
about what situation prevailed with regard
to sleeping over of KS at
the applicant's place. The respondent disputes the contention that
there is a
status
quo.
This
status
quo
is said by the applicant to have been having KS over at his place
for three nights. I have stated above that the respondent disputes
that there was any formal arrangement. On the same breath however the
respondent states that she had to bring some structure to
the access
by the applicant to KS. She goes further to say that the arrangement
that prevailed, which she does not characterize
as an arrangement,
was not age appropriate for KS and that she had to intervene, because
inter alia, the parties have different
approaches to parenting. It is
clear from the afore going, despite the respondent contending
otherwise, that there was a system
of parenting in place. It is this
system that the respondent has interfered with, purportedly, in the
interest of the KS.
[21]
The guidance as to what would be in the interest of KS is better left
in the hands of the Family Advocate. Once the court finds
that the
matter is urgent, it is inevitable that there should be an interim
arrangement and that the Family Advocate should be
brought in to
establish the true state of affairs and to report to court. In the
interim however, it is my view that it would be
in the interest of KS
to, mindful of the fact that he is only 20 months old, give an order
that is as close as possible to what
prevailed before the parties had
a fall out and went for each other's throats. I take it as firmly
established that when the parties
were staying together the applicant
was fairly involved in looking after KS. Even after moving out of the
common home he continued
to be available to take care of him. The
attention he gave him was in my view more than average. I say this
without casting aspersions
on the parenting or the attention the
respondent gave to KS. It is with that in mind that I hold the view
that there should be
a more than average interim arrangement,
commensurate with the attention given while the parties were not
engaged in fights. It
might appear generous or even disproportionate
to an outsider, it is however an attempt by this court, in the
interest of KS, to
be as close as possible to the environment that
prevailed before 21 August 2016.
[22]
The following dicta, though said in a different context, is apt about
how society of which parents are a part, should at all
times guard
what is said or even done under the pretext of protecting children.
In
Centre for Child Law
and Others v MEC for
Education, Gauteng and Others
2008 (1) SA 223
(T),
Murphy J held that;
“
As
a
society we
wish
to
be
judged by
the
humane and caring
manner
in
which
we
treat
our
children.
Our
Constitution
imposes
a
duty
upon
us
to
aim
for
the
highest
standard,
and
not
to
shirk
from
our responsibility. ...What message do we send to the
children when we tell them that they are to be removed from their
parents
because they deserve better care, and then neglect wholly to
provide that care? We betray them, and we teach them that
neither
the law nor State institutions can be trusted to
protect
them. In the
process
we are in danger of
relegating them to
a
class of outcasts, and in the final
analysis we hypocritically renege on the constitutional promise of
protection."
[23]
I therefore make the following order;
1.
That the application is urgent;
2.
That pending the final determination of the application in Part B of
the Notice of Motion dated 15th September 2016;
2.1.
both parties shall retain full parental rights and responsibilities
in respect of the minor child
KS, as provided for in sections
18
and 21 of the
Children's Act, 38 of 2005
;
2.2.
the Family Advocate is requested to conduct a thorough and
comprehensive investigation into the
best interest of KS and to
provide this court with a report and recommendation regarding both
parties parental rights and responsibilities
with specific reference
KS's primary care and the manner in which the non-custodian
parent should exercise reasonable contact
and access in respect of
KS;
2.3.
both parties are liable and responsible to attend to KS's primary
care as follows;
2.3.1.
he will reside with the respondent every Sunday, Monday, Tuesday and
Wednesday; and
2.3.2.
he will reside with the applicant every Thursday, Friday and
Saturday.
2.4.
both parties are responsible and liable for the maintenance of KS,
each according to his/her
own means;
2.5.
both parties retain guardianship in respect of KS.
3.
Part B of the application is postponed
sine die,
and either
party is entitled to re-enroll the application for hearing after the
Family Advocate has conducted the investigation
contemplated in this
order, and the parties are granted leave to supplement their
affidavits, if necessary; and
4.
The costs of this application are reserved for determination with
Part B of the application.
_____________________________
SA
THOBANE
ACTING
JUDGE OF THE HIGH COURT
DATE
OF HEARING
27th SEPTEMBER 2016
DATE
OF JUDGMENT
30th SEPTEMBER 2016
APPLICANT'S
COUNSEL
ADV: F.W. BOTES, SC
RESPONDENT'S
COUNSEL: ADV. C.
WOODROW