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South Africa: North Gauteng High Court, Pretoria
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[2015] ZAGPPHC 21
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M.S.R v K.K.T (89753/14) [2015] ZAGPPHC 21 (22 January 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG DIVISION, PRETORIA
CASE NO: 89753/14
DATE: 22 JANUARY
2015
IN THE MATTER
BETWEEN:
M[...] S[...]
R[...]
....................................................................................................................
APPLICANT
VERSUS
K[...] K[...]
T[...]
…...........................................................................................................
RESPONDENT
JUDGMENT
BAM, J
1. The applicant, on
an urgent basis, applied for an order in terms of the provisions of
Rule 43(6), as follows:
i. That the primary
residence of the minor child vests with the applicant, subject to the
respondent's rights of contact;
ii. That all
maintenance obligations of the previous court order in terms of the
provisions of Rule 43 be rescinded;
iii. That the family
advocate urgently undertakes an investigation as to the best interest
of the child;
iv. That the
respondent be ordered to pay the costs of the application;
v. That the fee
limits of Rule 43(7) and 43(8) be dispensed with.
2.
The matter concerns the child of the parties, born on 27 September
2012, presently 2 years and 4 months of age at a time the
parties
were residing together. The marital problems between the parties
resulted in a Rule 43 application and subsequent court
order dated 24
May 2013. The said court order provided,
inter
alia,
that
the child's primary residence should be with the respondent with
reasonable access by the applicant.
3.
The divorce matter was apparently enrolled for hearing on 24 November
2014 but later postponed
sine
die.
The
respondent purportedly wanted to apply for an amendment of the Rule
43 order but the application did not materialise.
4. At the time the
respondent was studying in America since February 2014. This the
applicant only became aware of on 11 November
2014. The respondent
apparently would have returned to the RSA on 21 November 2014.
5. The applicant
stated that he have not seen the child since November 2013.
6. It appears that
mainly because of the fact that the respondent was out of the
country, and that she will continue with her studies
in America for
the next year. The respondent did not inform the applicant who had
been looking after the child whilst she was in
America. This
situation prompted the applicant to lodge the present application.
7. The applicant
further motivated the application stating that the respondent is not
presently caring for the child and that he,
as father of the child,
should be granted the order he is seeking.
8. The respondent's
attorneys also informed the applicant that he could visit the child
during alternative weekends at the common
home and visitation rights
every Saturday. It was also pointed out by the applicant's attorneys
that the last time the applicant
has visited the child was in
December 2012.
9. According to the
respondent, in her opposing papers, the applicant, in a letter by his
attorneys dated 2 October 2014, disputed
that he was the father of
the child.
10.The child is
presently cared for at the parties' common home, by her cousin,
A[...] K[...], and a domestic servant employed by
the respondent
since the child was 5 months old.
11.The papers are
voluminous and contain a lot of irrelevant matter. In view of the
fact that no permission was requested by the
applicant to file
replying papers, I also indicated to applicant's counsel, Mr van Wyk,
that I was in the circumstances not prepared
to consider the contents
of the applicant's replying affidavit. I also pointed out that I was
concerned about the alleged urgency
of the application. However, as
submitted by Mr van Wyk the application concerns the interests of a
child. For the latter reason
I was accordingly amenable to
accommodate the application as urgent.
12.After having
considered all relevant facts and allegations made by the parties, as
submitted by Ms Erasmus on behalf of the respondent,
I could not find
any reason to say that the child was not properly cared for or in
need of better care.
13. I also took into
consideration the fact that the applicant is the natural father of
the child and that he has a right and is
obliged to look after, and
care for his child. However, the fact that the applicant did not have
contact with the child for approximately
2 years I arrived at the
conclusion that an order to grant the applicant custody of the child
at this point in time may be disruptive
to the child and not in the
child's best interests.
14.In view of the
fact that this court is the upper guardian of the child it was
incumbent on the court to consider what would have
been in the best
interests of the child. This led me to find that an order to grant
the applicant primary residence of the child
at this stage, without
proper investigation by the Family Advocate, will not be in the best
interests of the child.
15.The issue between
the parties pertaining to the common home was abandoned by Mr van
Wyk.
16. The order I
accordingly make reads as follows:
1.
The application is postponed
sine
die;
2. The applicant's
access to the child is provided for in the Rule 43 order dated 24 May
2013 and remains in place;
3. The Family
Advocate is requested to investigate the situation and to furnish a
report as soon as possible.
4. Costs are
reserved.
AJ BAM
JUDGE OF THE HIGH
COURT
20 January 2015