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[2016] ZAGPPHC 1078
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D v P (82527/2016) [2016] ZAGPPHC 1078 (15 December 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
15/12/2016
CASE
NO.: 82527/2016
Reportable:
No
Of
interest to other judges: No
Revised.
I.
D. Applicant
and
S.
P. Respondent
JUDGMENT
VAN
DER WESTHUIZEN, A J
1.
Having Solomon's Wisdom would be of great
assistance in this matter. However, his practical solution would no
doubt have been seen
with aghast in modern times in view of society's
view on human rights and in particular children's rights.
2.
The courts as upper guardian of minors have the
daunting task in deciding the destiny of minors when their parents,
either due to
their own actions or due to particular circumstances
forced upon them, cannot agree on what would be in the best interests
of their
minor children. More than often, the parents tend to see the
best interests of their children through their own self centred
interests,
and then pose those interests as being that of the minor
child. Rightly or wrongly, that is life. It does, however, impose a
greater
duty upon the court to determine what the best interests of
the minor child are.
3.
The Constitution of the Republic South Africa,
1996, and the Children's Act, 2005 (the Act), to an extent assist in
shouldering
that daunting task, but may, to some Extent, create
further difficulties. In particular, guidelines in respect of how
competing
Constitutional rights, specifically where such rights are
identical, are to be married with one another are few. This is more
so
where in addition there are competing rights of society that are
to be considered as well. Furthermore, section 7 of the Act
stipulates
a lengthy list of factors that need to be considered when
determining the best interests of a child.
4.
This application initially came before me on 27
October 2016 by way of urgency. I conveyed my views to counsel
appearing on behalf
of the parties and by agreement a draft order was
granted. In terms of that order, a
curatrix ad
litem
was appointed on behalf of the minor
child.
Inter alia,
leave
was granted to the parties to enrol the matter in consultation with
the Deputy Judge President, on the urgent roll as soon
as the
stipulated reports were received and the parties were further granted
leave to supplement their papers, if so advised.
5.
The matter was duly enrolled on the roll of the
Urgent Court and I was tasked to hear this matter, although I was not
designated
to sit in the urgent court this week.
6.
I would prefer to have more time to consider the
various submissions made by counsel and consider in more detail the
authorities
referred to and relied upon by counsel, but circumstances
dictate otherwise.
7.
Briefly the facts are as follows:
(a)
The applicant and the respondent were married to
each other in 2004.
(b)
In 2007 a child, S. (soon to be 9 years of age),
was born of the marriage.
(c)
The parties separated in 2009 and finally
divorced in 2010.
(d)
The respondent was awarded primary care and
residential parent of the minor child, both parties retaining full
parental responsibilities
and rights as envisaged in section 18(2)(a)
of the Act.
(e)
Since the separation of the parties, S. was
always in the care of the respondent and remained so after the
divorce until now.
(f)
Initially no problem was encountered in respect
of the applicant's right to contact with S..
(g)
This however, changed when the applicant met his
present wife during 2011. The applicant's contact with S. became
restricted. The
parties came to an agreement during 2012 as to the
contact rights of the applicant.
(h)
However, when the applicant and his present wife
got married, the applicant's contact rights with S. once again became
restricted.
It dwindled into infrequent, erratic and unpredictable
contact.
(i)
The acrimony between the parties came to a head
when the applicant unilaterally removed S. from her school with the
intention to
enrol her in a different school. The parties came to an
agreement and S. was enrolled in the school she attended during the
course
of this year, 2016.
(j)
As will be discussed below, the acrimony between
the parties erupted beyond their control when the respondent covertly
decided to
relocate to Durban. Hence this application being launched
as an urgent application in October 2016.
8.
A further complicating factor was the
respondent's re-conversion to the Christian faith. During her student
years the respondent
converted to the Islamic faith. The parties
married according to Muslim rights and also divorced in terms of
Muslim rights. The
applicant is a staunch Muslim.
9.
At the outset it is to be recorded that I accept
that both parties love S. dearly and that she in turn loves her
parents dearly.
I also accept that both parents are of the view that
they only have the best interests of S. at heart. The nub of the
problem in
this matter lies in what is in the best interests of S..
It may not be what either parent regard as being in her best
interests.
Hence the referral to Solomon's wisdom.
10.
Initially the respondent and the minor child
would have relocated to Durban prior to 1 November 2016. That
decision was only conveyed
to the appointed mediator on 17 October
2016, which prompted the launch of this application on 20 October
2016.
11.
The relief sought relates to an order restraining
the respondent from relocating to Durban pending the finalisation of
the assessment
and recommendation by Dr Lore Hartzenberg and further
relief flowing from the foregoing that would enable this court to
determine
definitively whether the intended relocation would be
beneficial to S.. Included in the relief sought, S. was to continue
receiving
play therapy from Dr Opper.
12.
In January 2016, the applicant obtained a court
·order regulating his contact rights with S.. In June 2016,
the parties commenced
mediation with a view to draft a parenting
plan. To date, naught has come of that mediation.
13.
It has no advantage to further delve into the
relationship between the parties, suffice to say that it is
acrimonious. One would
have thought that the parties, professionals
in their own right, would have sufficient maturity to put the
interests of S. before
their own self centred interests.
14.
It appears that the appointment of the
curatrix
ad litem
was beneficial. S. has her own voice
in the acrimonious dispute between her parents. This is evident when
regard is had to the expert
reports that have been compiled and filed
in this matter, subsequent to the hearing of 27 October 2016.
15.
Prior to the institution of this matter, S. was
being evaluated by Dr Lore Hartzenberg, an educational psychologist,
and received
play therapy from Dr Opper, an educational therapist.
Subsequent to the granting of the order of 27 October 2016, Dr
Hartzenberg
requested Mr N van Zyl, a clinical psychologist to
evaluate the applicant and the respondent. His reports on the
respective evaluations
have been filed. It will suffice to state that
although he could find no pathology in respect of either the
applicant or the respondent,
his recommendation is that both are to
undergo counselling to address their apparent inability to address
key issues relating to
S..
16.
The findings of the experts and their respective
recommendations highlight the fact that S. is confused and
disoriented, despite
an outward appearance of being happy and joyful.
Dr Hartzenberg reports that it is clear from the tests that were
applied in evaluating
S. and her parents, that S. has become what is
termed a 'parenting child' towards her mother, whom she perceives as
being unhappy
and sad and whom she is obliged to humour. Sadly this
results in an unconscious false projection upon her father as the
culprit
for her mother's unhappiness and sadness.
17.
In my view, the problem experienced in many
divorced families often results in a single-family unit on the one
part and a newly
completed family unit on the other. Understandable
the head of the single-family unit fears that he or she would "lose"
the child to the completed family unit, and hence actions are
undertaken to "prevent" such loss. This may result in the
head of the single-family unit subconsciously influencing the minor
child against the other parent. That this may be true in the
present
instance is to be gleaned from the reports of Dr Hartzenberg and Dr
van Zyl and to an extent from the comments of Dr Opper.
18.
I have had the benefit of written heads of
argument by counsel appearing on behalf of both parties and the
written report of the
curatrix ad litem
for
S.. I have also had the benefit of oral argument. Both counsel
referred me to various judgments dealing with the issue of
relocation.
In particular I find the judgment of Satchwell, J. in
LW
v DB
2015 JDR 2617 (GJ) informative. In that
judgment, the leading cases on relocation of a parent are considered
and commented upon.
Although the courts address the interests of the
minor child as paramount, the conclusion inevitably appears to be
directed at
the interests of the respective parents and evolves into
a decision one way or the other. In my view, that seems to put the
cart
before the horse. I am mindful of the tests to be applied
relating to the best interests of the child as stipulated in the Act.
I am also mindful of the principles to be applied as laid down by the
courts.
19.
Applying the principles enunciated in the cases
relating to the relocation of one parent slavishly to the present
instance, would,
in view of the particular circumstances that led to
this application, lead to the inevitable rubber stamping of the
respondent's
decision to relocate. To my mind that would not
necessarily have the best interests of S. at heart. The question is
whether that
decision was taken in a rational and considered manner.
20.
The parties' respective views, as expressed in
their affidavits and in the arguments put forward on their behalf,
are divergent
and do not lean towards an approach that could
accommodate the concerns of the parties. Hence, I am to consider and
to determine
what would be in the best interest of S.
21.
In this regard, I find some assistance from the
recommendations of the respective experts. However, the practical
implementation
of those recommendations results in the proverbial
catch-22.
22.
I interpose to address some historic events that
have important ramifications in the present instance.
23.
Problems surrounding the applicant's rights to
contact with S. have been in existence since at least 2011 when the
applicant met
his present wife. The parties to some extent addressed
the issue, although not definitively and some problems remain.
24.
The recent decision of the respondent to relocate
to Durban has serious consequences. The respondent has resigned from
her employment,
has sold her house and has packed all her belongings
ready to move to Durban. The practical effect thereof is that should
I not
endorse the relocation, the respondent would effectively be
unemployed and homeless. The respondent and S. are presently being
accommodated by friends pending a decision in this matter. A
situation, submitted by Mr Smith SC, who appears on behalf of the
respondent, warrants an order for relocation.
25.
However, the decision of the respondent to
relocate has erupted in a deep distrust between the parties and
brought their underlying
acrimony to the fore. Mr Smith sought to
downplay the emotive decision of the respondent in relocating and
clothed it in the constitutional
right to chose where to live, what
employment to take up and the right to relocate whenever the desire
arose.
26.
In my view, such approach focuses mainly upon the
interests of the party wishing to relocate, and not necessarily
focusing on what
would be in the best interests of the minor child.
It ignores by implication the set principles of
bona
fide
and reasonable consideration to be
applied when deciding to relocate.
27.
Section 31(2) of the Act obliges a parent holding
parental responsibilities and rights in respect of a child to first
consult with
the other parent before taking a decision contemplated
in section 31(1)(b) of the Act. In the present instance that did not
happen.
The respondent, whilst there are pending evaluations and
therapy relating to S., took the decision to relocate and once all
steps
were completed in that regard, merely advised the applicant
thereof. There was no compliance with the peremptory provisions of
section 31(2) of the Act.
28.
The respondent appears to have received legal
advice, contrary to the peremptory provisions of section 31(2) of the
Act, to first
attend to all issues of the decided relocation before
advising the applicant thereof. The applicant then being confronted
with
a situation
au fait accompli.
The
apparent intention was to make it impossible for the applicant to
veto
that decision.
This approach is concerning. In my view it is an important and
relevant factor when considering whether a
bona
fide
and reasonable decision was taken to
relocate.
29.
Mr Smith submitted that in view of the
respondent's Constitutional right to choose how and where to eke out
a living and to move
forward in life, would outweigh, or at least be
in, the minor child's best interests. That logic seems constrained in
the present
instance. It is also submitted on behalf of the
respondent that the relocation would remove, or heal, the acrimony
between the
parties. That logic also seems constrained. What is good
for the goose is not necessarily good for the gander. Mr Smith
further
submitted that despite the Constitution prescribing that the
best interests of minor children are paramount, those interests on
occasion are to play second fiddle to the Constitutional right of a
parent to choose where he or she prefers to live and eke out
a
living. No authority for that proposition was advanced and I know of
none. It is certainly contrary to the provisions of section
36 of the
Constitution which provides that any right can be limited depending
upon the particular circumstances.
30.
On behalf of the respondent it is further
submitted that the recommendations by the experts can be implemented
without denying S.
the right to relocate to Durban.
31.
In particular, it is submitted that the
recommendations relating to contact rights of the applicant could
still be implemented.
In my view, such approach would have serious
practical and logistical implications.
32.
The recommendations relating to S.'s continued
play therapy and the proposed counselling of the parties may well be
implemented
wherever the respondent and S. relocate to. However, the
vexed question is whether it would be in the best interests of S. to
be
subjected to further and new experts in that regard, resulting in
starting afresh with the building of trust, confidence and the
like
at such tender age. S. already suffers confusion and bewilderment.
33.
Furthermore, according to the export reports,
there exists an amiable report between S. and the applicant. No doubt
due to the effort
exerted by the applicant in that regard.
34.
Mr Smith further submitted that should the
respondent be permitted to relocate to Durban, it would enhance the
situation of S.;
she would be among her maternal family, in a less
acrimonious environment, will be attending a good school where she
could excel
as good as in the present school.
35.
The issue whether the intended environment would
be less acrimonious is speculative. It may be less acrimonious for
the respondent,
non constat that it would or may be the same for S.
Again only the interests of the respondent would be served.
36.
Further in this regard. S. will be denied the
known environment presently enjoyed; the comfort of existing friends,
the warm relationship
with her paternal family, the support received
from present and trusted experts and a school environment that she
has become accustomed
to.
37.
Relocating under the present circumstances can
hardly be said to be for the better. The only "advantage"
may be that her
mother, whom she dearly loves, may be happier.
However, that again reflects on the interests of the respondent. It
further emphasises
S.'s child parenting role.
38.
From the report of the
curatrix
ad /item
it is gleaned that effectively the
relocation, financially and employment wise, is no different from
that enjoyed prior to the decision
to relocate, despite Mr Smith's
submissions to the contrary. In my view, the only inference to be
drawn from the manner in which
the relocation is approached is that
it only serves the interests of the respondent.
39.
Mr Bates SC, who appears on behalf of the
applicant, submitted that the bemoaned effect that the respondent,
and hence S. too, would
be homeless and the respondent being
unemployed should the relocation not be ordered, is to be laid at the
door of the respondent.
She only is to blame. Mr Bates further
submitted that the respondent holds a professional qualification and
can be readily employed.
Again those aspects only serve the interests
of the respondent.
40.
Mr Smith further submitted that the recommended
contact proposals could readily be implemented should relocation be
ordered. It
was submitted that Durban is a mere 45-minute flight from
Johannesburg and hence every alternative weekend is plausible. In
this
regard a draft order was handed into court. It seeks to address
all the issues at stake within the context of a relocation. There
is
no merit in that submission. It ignores the travelling to and from
the airport, the inevitable probabilities of delays, cancellation
of
flights and the like. Inevitably the weekend results in a full day at
best. It further ignores the scholastic, religious, and
extramural
activities that would only increase as S. progresses. Although the
foregoing is also true in most cases, the complicating
factor in the
present instance is the counselling and therapy that is recommended,
in particular with reference to S.
41.
The suggestion that should S. be denied the
relocation, she would project the unhappiness of her mother towards
the applicant is
mere speculation. That could only be true should the
respondent allow her "unhappiness" with the result to
engulf S.
42.
There is merit in some of the submissions made on
behalf of both parties in respect of the issue of relocation and its
effect. However,
in my view those submissions only serve the
interests of the parties and not necessarily that of S.
43.
The concerns raised in the reports of Dr
Hartzenberg and Mr Snyman relating to S.'s vulnerability as a result
of the acrimonious
relationship between the parties cannot be
ignored. Those concerns need to be addressed, one way or the other.
44.
In this regard, Mr Bates handed into court a
similar draft order addressing the recommendations of the experts.
45.
Having regard to:
(a)
The paramount consideration of the best interests
of the minor child and in particular her tender age;
(b)
The purpose of the relocation and in particular
the irrational and inconsiderate manner in which decision was made;
(c)
The respective interests of the relocating and
non-relocating parent; and
(d)
The views of the minor child in so far as it can
be determined and as advanced by the
curatrix
ad litem
in the present instance,
I
am not convinced that S.'s best interests would be served in granting
relocation under the present circumstances.
I
grant the following order:
(a)
The matter is enrolled as one of urgency;
(b)
The respondent is ordered:
(i)
Not to remove S., born […] 2007 (the
"minor child"), from this Court's area of Jurisdiction in
order to relocate
the minor child to Durban;
(ii)
To re-enrol and to retain the minor child at
Midstream Primary School immediately;
(c)
The mediation presided over by Adv Natasha van
Niekerk specifically to adopt a parenting plan will continue until
not later than
28 February 2017, failing which Adv van Niekerk's
appointment shall terminate and lapse;
(d)
The applicant and the respondent shall
participate in a meaningful and reasonable manner in assisting Adv
van Niekerk in drafting
a parenting plan;
(e)
Subject to what is provided for in this order,
the terms and provisions of the order dated 14 January remain
operative and in force
and effect;
(f)
The applicant and the respondent retain full
parental responsibilities and rights in respect of the minor child,
as envisaged in
section 18(1) of the Children's Act, No. 38 of 2005
(the Act);
(g)
The respondent shall attend to the minor child's
primary care, as envisaged in section 18(2)(a) of the Act, subject to
the applicant's
rights of reasonable contact with the minor child, as
envisaged in section 18(2)(b) of the Act;
(h)
Specific parental responsibilities and rights in
respect of contact with the minor child, as envisaged in section
18(2)(b) of the
Act, are awarded to the applicant and to exercised in
accordance with the provisions of paragraph 19.8 of Dr Lore
Hartzenberg's
psychological report dated 2 December 2016 and shall in
addition there to include:
(i)
That the minor child shall be with the respondent
for the Easter weekend, inclusive of Good Friday and Easter Monday;
(ii)
That the minor child shall spend the last three
days of each Ramadan, and the two Eid days thereafter with the
applicant, provided
this will not interfere with the minor child's
schooling and the applicant shall be responsible for her attending
school and any
extramural activities that the child may be involved
in during that period;
(i)
The minor child will continue with the therapy
currently attended to by Dr Opper on a regular basis until such time
that Dr Opper
deems it necessary;
(j)
The respondent will avail herself for
psychotherapy treatment in respect of the psychological issues
referred to and identified
in Dr F N v Zyl's report dated 28 November
2016;
(k)
The applicant and the respondent will attend
parental guidance cessions with Dr Opper, or a psychologist
recommended by Dr Opper,
to support them in their parenting skills
and ability to focus on the best interests of the minor child as
opposed to focusing
on their own needs;
(l)
The applicant and the respondent are directed to
refrain from making any critical comments of each other in the
presence of the
minor child;
(m)
The minor child will continue her schooling
academic career at Midstream Rid£1e Primary School and any
change in school must
be mediated with the assistance of Adv Natasha
van Niekerk in a parenting plan;
(n)
Adv Johanni Barnardt will continue as the minor
child's
curatrix ad
litem
until such time
that she deems it necessary, specifically to monitor the minor
child's progress and the applicant and the respondent's
insight into
and understanding of the minor child's best interests;
(o)
The applicant and the respondent will at all
relevant times act in the minor child's best interests and establish
an environment
which is conducive to the minor child's best
interests, without giving preference to their personal (self centred)
interests;
(p)
The costs of Dr Opper and the
curatrix
ad !item
to be paid in equal shares by the
applicant and the respondent;
(q)
The costs of Dr Hatrzenberg and Dr van Zyl to be
paid by the applicant and the respondent proportionately to their
respective incomes;
(r)
No order is made in respect of the costs of this
application, including the costs reserved on 27 October 2016.
________________________
C
J VAN DER WESTHUIZEN
ACTING
JUDGE OF THE HIGH COURT
On
behalf of Applicant:
F W Bates SC
Instructed
by:
Suze Buitendach Attorneys
On
behalf of Respondent:
D A Smith SC
Instructed
by:
Schoeman & Associates