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[2015] ZAGPPHC 335
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D.K v P.J.M (57613/2014) [2015] ZAGPPHC 335 (24 April 2015)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG,
PRETORIA)
CASE NO:
57613/2014
DATE: 24 April
2015
Not reportable
Not of interest
to other judges
In the matter
between:
D[...]
K[...]
...................................................................................................................................
APPLICANT
And
P[...] J[...]
M[...]
......................................................................................................................
RESPONDENT
JUDGMENT
PRETORIUS J
[1]
The applicant launched an urgent application to court which resulted
in a
rule nisi
being
granted on 15 August 2014 with the following set out:
“
2.
A rule nisi is
hereby granted calling upon the respondent to show cause on the
8/10/14 day of
S
e
pt
e
mb
e
r
2014 at 10:00 or so soon
thereafter as the matter may be heard why an order should not be made
in the following terms:
2.
1
That primary care and residence of the minor child, one R[...] D[...]
K[...], who
was
bom on 05 June
2010, is hereby awarded to the applicant with immediate effect,
2.2 That the
applicant be given clothes of the minor child and his birth
certificate.
3. The relief
sought in paragraphs 2.1 and 2.2 above shall be implemented with
immediate effect, pending the return day of this
rule nisi.
4. That the
Respondent be granted right of reasonable access to the minor child."
[2]
On
26 January 2015 the court extended the rule nisi to 13 April 2015 and
referred the matter to the Family Advocate for assessment.
The Family
Advocate investigated the matter and delivered a report and
recommendations to the court. Hence the current hearing.
[3]
Background
:
The parties were
married by custom during April 2010. On 6 June 2010 a son, R[...]
D[...] K[...] (D[...]) was born. The respondent
lived with the
applicant’s parents after the baby’s birth until 9
September 2010, when she returned to Gauteng with
the applicant and
D[...]. On 30 September 2010 the parties agreed to take D[...] back
to the applicant’s parents, D[...]’s
grandparents, at
Giyani, as the respondent desired to look for employment. During
November 2010 the respondent started working
through an employment
agency. This resulted in her not having permanent employment and not
being able to visit D[...] regularly
at his grandparents’ home
in Giyani.
[4] It must be taken
into account that from the outset the applicant was prepared that the
respondent could stay at home and raise
their son. It was the
respondent’s wish to work. D[...] was living with his paternal
grandmother and aunt who took care of
him on a day to day basis.
[5] On 22 June 2012
the applicant and respondent had a heated argument, as he had wanted
to go to Giyani with her to see D[...],
but she refused. He went
alone. When he returned from home he tried to discuss the matter of
D[...] with her, but to no avail.
He persuaded her to visit Desmond,
which she did from 13 to 16 July 2012.
[6] On 13 August
2012 the applicant learnt that the respondent was pregnant with their
second child. He also discovered that she
had tried to abort the
foetus. He requested her to leave the common home after he had
discovered this and she moved and stayed
with her sister.
[7] D[...] was still
living with his grandmother and aunt with whom he had developed a
very strong bond. He was attending the local
créche and was
doing extremely well according to his school report.
[8] At all times the
applicant was maintaining D[...] and visiting him often. After the
birth of the second child the respondent
resided with her mother at
Ga-Mashashane and refused to come home, either to Giyani or to
Gauteng.
[9] On 29 June 2013,
after a meeting of both the applicant’s and respondent’s
families, they were reconciled. The respondent
stayed in Giyani with
the applicant’s family and the two children. On 19 August 2013
the respondent took both children to
Gauteng for a visit. On 6
September 2013 D[...] was taken to Giyani to live with his
grandmother and aunt by the respondent, as
the respondent had decided
to seek employment.
[10] On 6 December
2013 the respondent went back to Giyani to stay with the children
after she and the applicant had reached an
agreement. On 4 March 2014
the respondent took D[...] and told his grandmother that she was
taking him to the clinic. However,
she did not return and the
applicant found out, late at night, that the respondent was at
Ga-Mashashane with the children.
[11] On 26 July 2014
the applicant travelled to Ga-Mashashane - after not being able to
talk to D[...] or the respondent on the
phone. D[...] started crying
when he saw the applicant, his father. Both the respondent and the
baby were not present and he was
told that she could not be contacted
as she was far away. Eventually he spoke to her by phone, informing
her that he was taking
D[...] with him, as D[...] did not want to be
left behind.
[12]
On 29 July 2014 the respondent turned up at the applicant’s
home in Giyani accompanied by the police and took D[...]
away to
Ga-Mashashane, although D[...] was crying all the time as he did not
want to leave. Thereafter an urgent application was
launched which
resulted in the abovementioned
rule
nisi
being
granted on 15 August 2014.
[13] I have studied
the Family Advocate and Family Councillors reports. I can find no
reason to conclude that either the family
counsellor or the family
advocate was biased in their assessment.
[14] Section 7(1) of
the Children’s Act, No. 38 of 2005 deals with the standard of
the best interests of the child. I am aware
of the facts that the
court has to consider with the best interest of the child in mind and
will apply the provisions of section
7 to the prevailing
circumstances of D[...] when deciding what is in his best interest.
[15] It is so that
there is a younger sister born on 26 March 2013, who is presently two
years old. She has been in her mother’s
care since birth.
D[...] has only stayed with the respondent and his sister for very
limited periods. He has been separated from
his sibling for most of
her life and the court cannot find that it will lead to an unstable
upbringing if he does not stay with
the respondent and his baby
sister
[16] The family
counsellor interviewed both the applicant and the respondent jointly
in the presence of the family advocate. An
interview was conducted
with D[...] with the assistance of Mr Powane, a family counsellor
appointed in terms of section 3(1) of
the Mediation in Certain
Divorce Matters Act, No. 24 of 1987.
[17] At the time of
the interview D[...] was living at his paternal grandmother’s
home in Giyani and attending pre-school.
The applicant had telephonic
contact every morning with D[...] and visited him every month. The
respondent, on the other hand had
had physical contact on 20 August
2014 with D[...].
[18] It is common
cause that the respondent had threatened with suicide and to take
D[...]’s life as well. This threat is
of great concern to the
court. The respondent alleges that she tried to have contact with
D[...] in December 2014, but her access
was frustrated. She did not
take any steps to rectify this and has not seen him since the
interview with the family advocate.
[19] It is
unfortunate that, according to the family counsellor’s report,
D[...]’s mother does not form part of his
life according to
him. This must be addressed and rectified immediately. It is not in
the interest of a child to grow up without
contact with his mother
and the opportunity to form a bond with her.
[20] At present the
respondent’s residence in Gauteng is dependent on the
permanence of her employment, as her present contract
ends at the end
of May 2015. She is residing with her sister and child in a 2
bedroomed, 4 roomed house. The applicant is self-employed
as an
attorney and has been caring for D[...] since his birth.
[21] It must be
strongly emphasized that D[...] has been residing with his paternal
grandmother for the last three years with the
respondent’s
consent. She took him to his paternal grandmother’s home when
he was eighteen months old as she was seeking
employment. He is
presently four years and ten months old. He has spent most of his
life with his paternal grandmother and aunt
with the respondent’s
permission and consent. The paternal grandmother and aunt must be
regarded as D[...]’s primary
caregivers at the present time.
[22] The applicant
has clear plans of action for the minor child. He will leave him with
his grandmother to finish pre-school. He
will buy a house and enrol
D[...] in a school where Shangaan, D[...]’s first language, is
the language of choice.
[23] Section 6(2) of
the Children’s Act, No. 38 of 2005 provides:
“
(2)
All proceedings, actions or decisions in a matter concerning a child
must-
(a) respect,
protect, promote and fulfil the child’s rights set out in the
Bill of Rights, the best interests of the child
standard set out in
section 7 and the rights and principles set out in this Act, subject
to any lawful limitation;
(b) respect the
child's inherent dignity;
(c) treat the
child fairly and equitably;
(d) protect the
child from unfair discrimination on any ground, including on the
grounds of the health status or disability of the
child or a family
member of the child;
(e) recognise a
child’s need for development and to engage in play and other
recreational activities appropriate to the child's
age; and
(f) recognise a
child’s disability and create an enabling environment to
respond to the special needs that the child has"
[24]
I must agree with the court in
P
v P 2007(5) SA 94 (SCA)
where
Van Heerden JA found at paragraph 26 that:
“
In
more recent cases, the value systems and societal beliefs
underpinning the 'maternal preference' or 'tender years' principle
have been challenged and Courts have emphasised that parenting is a
gender-neutral function and that the assumption that a mother
is
necessarily in a better position to care for a child than the father
belongs to a past era. ”
[25] I have
carefully considered the recommendations by the family advocate. It
is clear that the transition from Limpopo to Gauteng
must be handled
carefully and that the assistance of an expert should be obtained to
assist D[...] to move to Gauteng with as little
emotional and
physical upheaval as possible.
[26] There is no
doubt that the respondent has to play a significant part in D[...]’s
life and the applicant will have to
assist to accomplish this. D[...]
needs both his parents’ care and love to enable him to reach
his full potential and to
thrive in a loving and stable environment.
[27]
Therefor I make the following
order:
1. The applicant
and respondent retain full parental responsibilities and rights with
regard to the care and guardianship of D[...];
2. The parental
responsibility and right with regard to residency is awarded to the
applicant.
3. The respondent
is granted specific parental responsibility and rights regarding
contact as contemplated in Section 18(2)(b) of
the Children’s
Act 38 of 2005 with the minor child which should include but not be
limited to:
3.1 Contact with
the minor child every alternate weekend from Friday 17h00 until
Sunday 17h00.
3.2 Regular
telephonic contact to be maintained.
3.3 The parties
to alternate the short holidays and long weekends. Each party is
entitled to have D[...] for half of the long school
holidays,
commencing in June 2015;
4. A clinical
psychologist has to be appointed to assist the minor child, D[...],
with the transition from Giyani to Thembisa.
5. Each party to
pay its own costs.
Judge C Pretorius
Case number:
57613/2014
Application heard
on: 16 April 2015
For the Applicant:
Adv. SS Tebeile
Instructed by: RJL
Attorneys & Cost Consultants
For the Respondent:
Adv. K Mhlanga
Instructed by:
Raphesu (JL) Attorneys
Date of Judgment: 24
April 2015