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[2015] ZAGPPHC 386
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Nel v Byliefeldt and Another (27748/2015) [2015] ZAGPPHC 386 (11 May 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTH GAUTENG
DIVISION, PRETORIA
CASE
NO:
27748/2015
In
the matter between:
ESTER
NEL
APPLICANT
(Applicant
in the application for leave to appeal)
and
VALERIE
DEODOT BYLIEFELDT
FIRST RESPONDENT
CORRIE
BYLIEFELDT
SECOND RESPONDENT
(Respondents
in the application for leave to appeal)
JUDGMENT
BASSON,
J
[1]
This is an application for leave to appeal against an order granted
by this Court on Friday 8 May 2015. Because this dispute
involves two
minor children I have decided to hear the application for leave to
appeal on an expedited basis. The application for
leave to appeal was
argued on Monday 11 May 2015. In light of the urgency of this
matter, I intend to give only brief reasons
for my decision refusing
the application for leave to appeal.
[2]
This
matter initially served before Baqwa, J in urgent proceedings on 17
April 2015. When the matter served before the Court the
respondents
have not yet had an opportunity to file their answering affidavit.
The Court issued a
Rule
Nisi
returnable on 5 May 2015 in terms of which the two minor children Z.
C. L. G. (“Z.” - born [….] M… 2…)
and P. K. W. G. (“P. ”- born [….] D…2…)
were placed in the care of the applicant who is their
natural mother.
The salient parts of this order reads as follows:
“
That
a
rule
nisi
,
returnable on 5 May 2015, calling on the respondent to show cause
why the following should not be made an order of court:
2.1 The Family Advocate is requested
to investigate the best interest of the minor children, Z. C. L. G.
(born [….] M….
2….) and P. K. W. G. (born [….]
D…. 2…..), with specific reference to the care, contact
and residency
and to make recommendations in regards;
2.2
Pending the recommendations of the Family Advocate, the said minor
children are removed forthwith from the care of the respondent
and
placed immediately in the care of the applicant, who is awarded the
primary care and residence;”
[3]
It
is common cause that the applicant fetched the minor children from
the respondents’ residence on the same day.
[4]
On
5 May 2015 (the return day) this Court directed that the matter stand
down to Thursday, 7 May 2015 to afford the parties an opportunity
to
deliver supplementary affidavits to address some of the concerns
raised by the Court regarding the medical treatment of the
minor
child Z.. After having heard argument in the matter the Court
directed counsel to prepare a draft order that would
be in line with
the Court’s views.
[5]
A
draft order was presented to the Court on Friday 8 May 2015 and was
made an order of Court. Counsel on behalf of the applicant
placed on
record that he did not agree with the order. This order,
inter
alia
,
discharged the
Rule
Nisi
granted
on 17 April 2015 and ordered the return of the children in the care
of the respondents by 16:00 hours on Sunday, 10 May
2015.
[6]
At
approximately 15:50 on Friday, 8 May 2015, the applicant gave notice
of her intention to bring an application for Leave to Appeal.
As
already pointed out, due to the urgency of the mater the application
for Leave to Appeal was heard on an expedited basis on
Monday, 11 May
2015. (I will return to the merits of this application hereinbelow.)
[7]
The
draft order made an order of Court on 8 May 2015 reads as follows. I
deem it necessary to quote the order in full in light of
the
submissions advance on behalf of the applicant in the application for
Leave to Appeal:
“
1.
The rule nisi granted on 17
April 2015 is discharged.
2.
The primary care and residence of the minor children Z. C. L. G.
(born [….]
M… 2…..) and P. K. W. G. (“the
children”) will revert to the Respondents pending the return
date of 31
July 2015, on which date the parties shall report to this
Court on the decision reached by the Magistrates’ Court,
Makopane
in respect of the children’s care and residence.
3.
The Applicant is ordered to return the children to the Respondents
residence at […]
B. Street, M. by no later than 16H00 on 10
May 2015.
4.
The Magistrates’ Court for the District of Makopane is
requested to expedite
proceedings under case number 14/1/4-61/2013
with a view of finalising the process being conducted in terms of
section 155 of the
Children’s Act, pertaining to the care and
primary residence of the children, and to issue its order by no later
than 10
July 2015, to enable the Applicant and the Respondents to
report back to this court on 31 July 2015, on the decision reached by
the Magistrates’ Court and of any order(s) granted in this
regard.
5.
Pending the return date, the Applicant is entitled to unrestricted
contact with and
access to the minor children but not the right to
remove the children from the care of the Respondents, save for
pre-arranged medical
and psychological consultations, and
consultations with the office of the Family Advocate and save for her
right to have her children
with her every alternative weekend, the
children to be returned to the respondents by 16:00 on Sunday
afternoon.
6.
The Office of the Family Advocate is requested to investigate, as a
matter of urgency,
the best interests of the children with specific
reference to their care, contact and residence and to make
recommendations in
these regards, and to provide such recommendations
to the Magistrates’ Court, Makopane timeously to enable the
Magistrates’
Court to consider the recommendations of the
office of the Family Advocate before issuing any orders in regard to
the children.
7.
The Applicant and the Respondents are (sic) granted permission to
each, at the own
costs, [to] obtain such independent medical and/or
psychological reports as they deem fit in order to facilitate the
determination
of the best interest of the minor children.
8.
There is no order as to
costs.”
Brief
exposition of the background facts
[8]
In
her founding affidavit, the applicant levels serious allegations of
ill-treatment of the children against the two respondents.
I have
already pointed out that, at the time of issuing the
Rule
Nisi
,
the respondents have not yet had an opportunity to file an answering
affidavit and consequently the Court did not have the benefit
of the
respondents’ papers when issuing the
Rule
Nisi
.
The respondents subsequently filed their answering affidavit.
[9]
It
is common cause that the applicant is the biological mother of the
two minor children. The father is Mr P. Grobbbelaar (“P.
(sr)”)
to whom the applicant was engaged to be married. On 25 September 2009
P. (sr) was shot and killed in an incident at
work. The first
respondent is the sister of the children’s father (P. (sr)).
The second respondent is the husband of the
first respondent.
[10]
At
the time of his death, P. (sr) and the applicant were not married and
P. (the minor child) was not yet born. Z. was […..]
years old
at the time of her father’s death.
[11]
During
her pregnancy the applicant resided with her then prospective
parents-in-law: Mr and Mrs Grobbelaar. (I will refer to the
parents
of the deceased P. (sr) as “the paternal grandparents”).
[12]
Shortly
before the birth of P. , the applicant left to stay with her mother
and step-father until after the birth of P. . The applicant,
however,
again moved back to the paternal grandparents and lived with them for
some time.
[13]
During
2012 the applicant moved with her new fiancé to Kuruman. She
explains in her affidavit that she was unable to properly
care for
her children in Kuruman and therefore requested the paternal
grandparents to take care of the children. According to the
applicant
she maintained regular contact with the children. This is denied by
the respondents who state in their answering affidavit
that, at most,
the applicant had seen the children twice over the past two years.
According to the respondents the paternal grandparents
thereafter
requested them to take the children and look after them.
[14]
In
March/ April 2012 the paternal grandparents made an application to
legally adopt Z. and P. . Attached to the answering affidavit
are two
forms: The first is “Form 80” which is the “
Application
for the Adoption of a Child
”.
The second is “Form 81” which is the “
Consent
by Parent to the Adoption of Child
”.
It appears
ex
facie
from Form 81 that the applicant had voluntary consented to the
adoption of the two minors by the paternal grandparents. This
“
Consent
by Parent to the Adoption of Child
”
is signed by the applicant as well as the Presiding Officer of the
Children’s Court and is dated 16 September 2013.
However,
before the adoption process had been finalised the applicant left for
Kuruman leaving the two minor children with the
paternal
grandparents.
[15]
Later
in 2012 the two minor children were placed in the care of the two
respondents. According to the first respondent Z. has subsequently
been diagnosed with an attention deficit disorder and is currently
under the care of a psychologist for treatment. She is currently
taking the prescription medication identified as “Concerta”.
In this regard the respondents attached to their supplementary
affidavit a report by Ms Van der Westhuizen - a registered
psychologist - who has been treating Z. since January 2013.
In
a fairly detailed report Ms Van der Westhuizen sets out her diagnosis
of Z. and motivates her recommendation that Z. be treated
with
Concerta. She also notes in her report that that the mother of Z.
“
hardly
ever made contact and rarely ever visited”
.
The psychologist also recommended that Z.’s environment should
be kept stable as far as possible as she struggles to adapt
to
change. Also attached to the papers is a prescription issued by Dr V
Els a medical doctor prescribing “Concerta”
to Z..
[16]
According
to Annexures B1 – B3 and Annexure C (attached to the answering
affidavit), the children were placed in the temporary
safe care of
the respondents by the Children’s Court on 16 August 2013. A
further order to the same effect was made by the
Children’s
Court on 7 November 2014.
[17]
Also
attached to the papers is an earlier report by Ms Van der Westhuizen
(the registered psychologist dated 5 February 2015) in
terms whereof
it was recommended that the two minor children be permanently placed
in the care of the two respondents.
[18]
At
this juncture it must be pointed out that Mr Coetsee (counsel on
behalf of the applicant) expressly disputed that any court orders
placing the children in the care of the respondents existed. In fact,
he was adamant that the applicant as the natural mother had
the right
to remove her children. When reference was made by Mr Mollentz
(counsel on behalf of the respondents) to a letter dated
21 April
2015 confirming that the children were placed in the care of the two
respondents in terms of two court orders, Mr Coetsee
dismissed the
letter stating that a letter from an attorney meant nothing and that
there are no evidence of any court orders placing
the children in the
care of the respondents.
[19]
I
have already referred to the fact that the two court orders are
indeed attached to the answering affidavit and the question arises
as
to why Mr Coetsee did not seem it fit to draw the Court’s
attention to these two court orders which are clearly of crucial
importance in these proceedings. Be it as it may, it is clear that
the children have been placed by the Children’s Court
in the
temporary safe care of the respondents. In this regard the Court has
also been assured by Mr Mollentz that this process
is an on-going
process hence a request that this Court return the two minor children
to the respondents and order the Magistrates’
Court for the
District of Mokopane to expedite proceedings under case number 14
/1/4-16/2013 with a view of finalising the process
currently pending
in terms of section 155 of the Children’s Act.
The
application for leave to appeal
[20]
What
is before the Court in this Application for Leave to Appeal?
The applicant first seeks leave to appeal against the discharge
of
the
Rule
Nisi
granted on 17 April 2015. The applicant further seeks leave to appeal
against the further orders, returnable on 31 July 2015,
contained in
paragraphs 2 – 8 of the order dated 8 May 2015.
Discharge
of the Rule Nisi
[21]
I
will first deal with the discharge of the
Rule
Nisi
.
I have already pointed out that, at the time of the granting of the
Rule
Nisi
,
the Court did not have the benefit of considering the answering
affidavit which was subsequently filed on 23 April 2015. It is
trite
that, in deciding whether to confirm or discharge a Rule, the primary
consideration is and should always be what is in the
best interest of
the two minor children.
[22]
The
Court has taken note of the serious allegations which are levelled
against the respondents in the founding affidavit. Most of
these
allegations refer to the alleged ill-treatment of the minor children.
These allegations are strenuously denied by the respondents
in the
answering affidavit. The Court has also taken note of the fact that
the applicant’s lengthy separation from her children
goes
largely unexplained.
[23]
In
considering whether to confirm or discharge the Rule in light of the
facts placed before the Court, the Court had regard,
inter
alia
,
to the fact that there is an on-going process in terms of section 155
of the Children’s Act and that this process is currently
serving before the Magistrates Court for the District of Makopane.
The Court also considered the report by a registered psychologist
(Ms
Van der Westhuizen) who recommended that two minor children be placed
in the permanent care of the two respondents. In addition
hereto, the
Court also considered the two reports compiled by teachers of the two
minors: “
Skoolverslag:
Suid Afrikaanse Vrouefederasie
”.
Both teachers reported positively on the well-being of the two
children and both teachers pointed out in what respects
the children
experienced some difficulties at school.
[24]
The
Court has also taken consideration of the circumstances under which
the children were left in the care of the grandparents and
the fact
that a change in the environment of the children will be particularly
disruptive of Z.’s schooling. If regard is
had to the school
reports of Z. it appears that she has adapted well and that she has
shown remarkable improvement.
[25]
In
order to assist the Court in making a finding in respect of what is
in the best interest of the two minor children, the Court
requested
further supplementary affidavit which were filed during the course of
last week. The Court also had regard to the contents
of these
affidavits.
[26]
It
is trite that the overriding consideration a Court must take into
account in deciding a matter involving minor children is what
is in
the best interests of the minor child:
“
The standard
of the child's best interest has been described as "[a] golden
thread which runs throughout the whole fabric of
our law relating to
children". The best interest of the child is established as the
determining factor in decisions relating
to guardianship, access and
custody of children in our private law and the rule is entrenched in
the Constitution. It also forms
one of the foundation stones of the
Convention on the Rights of the Child. In terms of the Convention, in
all actions concerning
children, whether undertaken by public or
private social welfare institutions, courts of law, administrative
authorities or legislative
bodies, the best interest of the child
must be a primary consideration. A child is defined in the Convention
on the Rights of the
Child and in the South African Constitution as
every human being under the age of eighteen years, unless under the
law applicable
to the child, majority is attained earlier. The
Constitution of South Africa in its Bill of Rights provides for the
paramountcy
of the best interest of the child standard.”
[1]
[27]
The
best interests of the minor child must be considered in light of the
specific circumstances of each case. In considering this
important
question the Court is not imposing “
its
own subjective whims upon the children”.
In this regard I am in full agreement with the following sentiments
expressed by Nugent, J in
[zRPz]
Godbeer
v Godbeer
[2]
“
While this
Court is the upper guardian of all minors and may insist in
appropriate cases upon limiting the freedom of choice of
the
custodian, I do not think that should be translated into this Court
imposing its own subjective whims upon the children of
the parties
concerned. In
Bailey's
case at 136 the Court quoted the following extract from the judgment
of the Court in
Du
Preez v Du Preez
1969
(3) SA 529 (D)
at
532E - F, apparently with approval:
'This is not to say
that the opinion and desires of the custodian parent are to be
ignored or brushed aside, indeed, the Court takes
upon itself a grave
responsibility if it decides to override the custodian parent's
decision as to what is best in the interests
of his child and will
only do so after the most careful consideration of all the
circumstances, including the reasons for
the custodian parent's
decision and the emotions or impulses which have contributed to it.'”
[28]
I
am also in agreement with the following comments made by the
Constitutional Court regarding the “
paramountcy
principle”
in matters dealing with the best interests of the child:
“
[23]
Once more one notes that the very expansiveness of the paramountcy
principle creates the risk of appearing to promise everything
in
general while actually delivering little in particular. Thus, the
concept of 'the best interests' has been attacked as inherently
indeterminate, providing little guidance to those given the task
of applying it. Van Heerden in
Boberg
states that:
(T)he South
African Constitution, as also the 1989 United Nations Convention on
the Rights of the Child and the 1979 United Nations
Convention on the
Elimination of All Forms of Discrimination Against Women,
enshrine the 'best interests of the child' standard
as 'paramount' or
'primary' consideration in all matters concerning children. It has,
however, been argued that the 'best interests'
standard is
problematic in that,
inter alia
: (i) it is 'indeterminate';
(ii) members of the various professions dealing with matters
concerning children (such as the legal,
social work and mental health
professions) have quite different perspectives on the concept
'best interests of the child';
and (iii) the way in which the 'best
interests' criterion is interpreted and applied by different
countries (and indeed, by different
courts and other decision-makers
within the same country) is influenced to a large extent by the
historical background to and the
cultural, social, political and
economic conditions of the country concerned, as also by the value
system of the relevant
decision-maker. (Footnotes omitted.)
[24]
These problems cannot be denied. Yet this court has recognised
that it is precisely the contextual nature and inherent
flexibility
of s 28 that constitutes the source of its strength. Thus, in
Fitzpatrick
this court held that the best-interests principle has 'never
been given exhaustive content', but that '(i)t is necessary that
the
standard should be flexible as individual circumstances will
determine which factors secure the best interests of a particular
child'. Furthermore '(t)he list of factors competing for the core of
best interests [of the child] is almost endless and
will depend
on each particular factual situation'. Viewed in this light,
indeterminacy of outcome is not a weakness. A truly principled
child-centred approach requires a close and individualised
examination of the precise real-life situation of the particular
child
involved. To apply a predetermined formula for the sake of
certainty, irrespective of the circumstances, would in fact
be
contrary to the best interests of the child concerned.”
[3]
[29]
Having
regard to all the facts that have been placed before the Court in
this application, this Court is of the view that it is
not in the
best interest of the children to confirm the
Rule
Nisi
.
By discharging the
Rule
Nisi
the necessary consequence would be for the children to return to the
two respondents despite a submission on behalf of the applicant
that
the applicant as the natural mother has a right to keep the children
in her care. I do not agree. The children have been placed
in the
temporary care of the respondents by the Children’s Court which
process is on-going. (I will revert to this issue
hereinbelow.)
[30]
I
am accordingly not persuaded that in light of the facts that were
placed before this Court that the applicant has reasonable prospects
of success. In the event as far as order discharging the
Rule
Nisi
is concerned, the application for leave to appeal is dismissed.
Further
order dated 8 May 2015 and returnable on 31 July 2015
[31]
I
have already referred to the fact that the applicant also takes issue
with the further order made by this Court which order is
returnable
on 31 July 2015. This order seeks to provide for the interim care of
the minor children pending the outcome of the section
155 proceedings
currently pending before the Children’s Court and to provide
for ancillary matters thereto which would expedite
the proceedings
before the Children’s Court.
[32]
Having
read the papers, this Court is of the view that, in light of the
facts that have been placed before this Court, there is
an urgent
need to normalise and bring to finality the pending section 155
proceedings which are aimed at determining what is in
the best
interests of the children. The pending proceedings before the
Children’s Court have effectively been interrupted
by the
application by the applicant to remove the children from the care of
the respondents. A letter from the designated social
worker Mrs
Jannasch confirms that she is currently in the process of finalising
her investigation and report and that she was appointed
by the
Children’s Court as the designated social worker for the two
minor children. She also confirms that she has been seized
with the
matter since 2013.
[33]
The
Court also ordered that, pending the outcome of these proceedings the
applicant is entitled to unrestricted contact and access
to the minor
children. Unrestricted access to the children was ordered in the best
interests of the minor children to ensure that
the relationship
between them and their mother be normalised as a matter of urgency.
Furthermore, granting unrestricted access
to the minor children will
ensure that the applicant be granted a measure of control over the
day to day care and wellbeing of
the minor children which is in their
best interest at this stage. It should further be pointed out that
the respondents proposed
that the applicant be granted unrestricted
access to the children pending the outcome of the section 155
process.
[34]
The
applicant took strong issue with this order and submitted that the
effect of this order is that this Court has divested itself
of its
powers as the upper guardian of all minor children. This can, of
course, never be the case. No Court will ever shrink away
from this
important duty and no Court will relinquish its powers as the upper
guardian of the minor children. In this regard I
am, particularly, in
agreement with the following statement by the Constitutional Court in
H
v Fetal Assessment Centre
:
“
[64] In
South Africa, in addition to section 28(2) of the Constitution, the
common law principle that the
High
Court is the upper guardian
of
children obliges courts to act in the best interests of the child in
all matters involving the child. As upper guardian of all
dependent
and minor children, courts have a duty and authority to establish
what is in the best interests of children. Notably,
in
Mpofu
this
Court endorsed the approach in
Kotze
v Kotze
:
"[T]he
High Court sits as upper guardian in matters involving the best
interests of the child (be it in custody matters or
otherwise), and
it has extremely wide powers in establishing what such best interests
are. It is not bound by procedural strictures
or by the limitations
of the evidence presented, or contentions advanced or not advanced,
by respective parties."”
[4]
[35]
The
Court in
H
v Fetal Assessment
[5]
stressed the importance of this Court not being bound by “
procedural
strictures or by the limitations of the evidence presented, or
contentions advanced or not advanced, by respective parents
”
Having read the papers and having taken cognisance of the particular
circumstances that prevail in this particular case,
the Court has
again been reminded of the importance of its role as the upper
guardian of the minor children. In granting this particular
order the
Court was mindful of the on-going and pending proceedings before the
Children’s Court and the need for these proceedings
to be
completed on an expedited basis. In the interests of the minor
children this Court deemed it fit to make an order pertaining
to the
future conduct of proceedings that will be in the best interest of
both minor children. Furthermore, in order for these
proceedings to
be brought to finality, an order had to be made to return the
children to the respondents. Further in the interests
of the minor
children and to assist the Children’s Court to make an informed
decision regarding the two minor children, it
was necessary to make
an order to allow for independent medical and psychological
investigations to be conducted. The order to
obtain an independent
medical assessment of Z. was made in light of the current dispute
between the applicant and the respondents
regarding the necessity of
Z. taking medication.
[36]
It
was further submitted on behalf of the applicant that the order dated
8 May 2015 is a final order in effect. I do not agree.
It is clear
from the order that this is not so.
[37]
Although
it is accepted that an interim order is ordinarily not appealable, I
also accept that this is not an inflexible rule and
that all
circumstances must be taken into account in deciding whether an
application for leave to appeal should be granted in respect
of an
interim order.
[6]
Although the
interim order provides that the two minor children be returned in the
care of the respondents, unlimited access to
the children is granted
to the applicant pending the outcome of the on-going proceedings
before the Children’s Court.
In order to ensure that the
children’s’ wellbeing and best interests are properly
assessed, the Court not only ordered
the intervention of the Family
Advocate on an expedited basis, but ordered the parties to appoint
various medical experts and other
professional experts of their
choosing to assess the children.
[38]
In
these circumstances, I am of the view that it is not in the interest
of justice to grant leave to appeal against the interim
order granted
on 8 May 2015. In the event the application for leave to appeal
against this order is dismissed with costs.
[39]
Order:
The application for leave
to appeal is dismissed with costs.
A C BASSON
JUDGE OF THE NORTH
GAUTENG HIGH COURT
Case
no: 27748/15
HEARD
ON: 11 May 2015
FOR
THE APPELLANT: Adv. M Coetzee
INSTRUCTED
BY: ML Schoeman Attorneys Incorporated
FOR
THE RESPONDENT: Adv J.
Mollentz
INSTRUCTED
BY: Schalk Pienaar Attorneys
[1]
Brigitte
Clark
A
"golden thread"? Some aspects of the application of the
standard of the best interest of the child in South African
family
law
2000 Stellenbosch Law Review 3.
Footnotes omitted.
[2]
2000 (3) SA 976
(W) at 982D – F.
[3]
Footnotes
omitted.
[4]
2014
JDR 2720 (CC). Footnotes omitted.
[zRPz]
[5]
Ibid
.
[6]
See:
National
Treasury & others v Opposition to Urban Tolling Alliance
2012
(6) SA 223
(CC)
“
[24]
'It is so that courts are rightly reluctant to hear appeals against
interim orders that have no final effect and that in
any event are
susceptible to reconsideration by a court when the final
relief is determined. That, however, is not an inflexible
rule. In
each case, what best serves the interests of justice dictates
whether an appeal against an interim order should be entertained.
That accords well with developments in case law dealing with when an
appeal against an interim order may be permitted.”