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[2015] ZAGPPHC 624
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A.J.V.R v D.H (56370/2015) [2015] ZAGPPHC 624 (19 August 2015)
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Certain
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IN THE NORTH GAUTENG HIGH COURT,
PRETORIA
[REPUBLIC OF SOUTH AFRICA]
(1)
REPORTABLE:
YES / NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED.
19
AUGUST 2015
_______
DATE
SIGNATURE
CASE
NUMBER: 56370 / 2015
In the
matter between:
A. J.
V.
R.
APPLICANT
And
D.
H.
RESPONDENT
JUDGMENT
MAVUNDLA
J;
[1] At
the centre stage in this matter, in my view, lies the question of
what is in the best interest of a little girl, born on
[......], 2
years five months old, out of wedlock between her now warring
parents, her biological father who is the applicant and
her
biological mother who is the respondent. Typical of a situation
where the rose- tinted glasses fall and break, the owners
thereof,
become like two fighting bull elephants
charging
at each other, with no quarters given, seeing nothing but an enemy,
destroy everything around them.
In
casu
, the victim
will invariably be the innocent child. The High Court is enjoined to
protect the innocent child at all times. The
adjudication of
this matter, invariably, must be geared towards upholding that
protection imperative towards the child.
[2] The
parties have been previously
involved
in one or other legal duel against each other, all centred on the
minor child. Those legal skirmishes, I shall refer
to as and
when it becomes necessary. The present duel unfolded when the
applicant obtained, on an
ex
parte
urgent
application, an order by Mabuse J on the 20 July 2015, premised on
oral evidence of the applicant. The order, in terms of
Part A of the
notice of application,
requested
the family advocate to conduct an urgent investigation into the best
interest of the minor child and compile a report
containing
recommendations regarding the parties’ parental
responsibilities and rights; ordered that the minor child remains
with the applicant pending the final adjudication of Part B. The
respondent was granted reasonable contact under supervision of
the
applicant every weekend on Saturday and Sunday from 10h00 until 1400
and reasonable daily telephonic contact. Part B of the
application
was postponed sine die and the costs of the application were reserved
for adjudication together with Part B.
[3] The
respondent anticipated the order of Mabuse J and filed a replying
affidavit, seeking reconsideration and setting aside of
the said.
This drew the first salvo by the applicant, calling for a preliminary
point to be decided, whether the respondent is
properly before this
Court. The order granted by Mabuse J did not provide a
rule
nisi
, although its
duration depends on the final adjudication of Part B, is to a certain
extent final in nature. However, rule 6(12)
(c) permits a person
aggrieved by an order granted in his absence against him in an urgent
application, as was the case
in
casu
, be it interim
or final, to anticipate such order and set it down for
reconsideration; vide
National
Director of Public Prosecutions v Braun and Another.
[1]
In my view, that
the respondent was properly before the Court, brooks no further
argument.
[4] Ms Viljoen
who appeared on behalf of the respondent raised three points
in
limine
, namely that:
4.1
This Court did not have jurisdiction because the respondent is the
biological
mother and guardian of the minor child. There was no Court
order obtained by the applicant, in terms of s18 of the Children’s
Act, neither was the settlement agreement between the parties made an
order of Court.
4.2
The matter is
lis
pendens
before the
Children’s Court in Pretoria. In terms of s172 of the
Children’s Act, if the parties settled the matter,
such
settlement must be submitted to the clerk of the Court and be made an
order of the Court, which is not the case
in
casu
.
4.3
the applicant
abused the Court process in that the
onus
rested on him. The applicants mislead the Court by alleging that a
warrant of arrest was issued against him, whereas it had been
held
over. Further the applicant did not disclose to the Court that the
child stayed in the jurisdiction of the Bloemfontein Court
but merely
alleged that the child stayed with him, the applicant. He also did
not disclose the Court that he did not withdraw the
matter in the
Magistrate’s court.
[5]
In deciding the points
in
limine
raised, it
needs to be borne in mind that this Court is the upper guardian of
all children,
[2]
be they resident or temporal sojourners, and has jurisdiction over
issues pertaining to the best interest of such children that
find
themselves within its jurisdiction. It is enjoined to protect them
and has wide powers to do so. The Court has wide
powers to do
so. The Court must take into account all relevant factors, be they in
the past or present, that pertain to the matter,
not only in deciding
jurisdictional issues but any and or all, for the protection of the
child. In the matter of FS v JJ
[3]
the Supreme Court with regard to disputes over children
held that: “
AD
and DD v DW and Others (Centre for Child Law as Amicus Curiae;
Department for Social Development as Intervening Party)
[4]
the Constitutional
Court endorsed the view of the minority in the Supreme Court of
Appeal that the interests of minors should not
be 'held to ransom for
the sake of legal niceties
[5]
and held that in the case before it the best interests of the child
'should not be mechanically sacrificed on the altar of jurisdictional
formalism'. In the matter of J v J
[6]
it was decided that the interest of the child is paramount and should
not be sacrificed on the altar of judicial formalism.
[6] It
is common cause that the parties reached an agreement that the child
shall be with the respondent from Sunday afternoon to
Thursday
morning and with the applicant from Thursday afternoon to Sunday
morning. It is common cause that the respondent resides
in Sasolburg,
which is outside this Court’s jurisdiction, while the applicant
resides in Vereeniging within this Court’s
jurisdiction.
Section 44(2) of the
Children’s
Act 38 of 2005
provides that:
“
Where it is
unclear which court has jurisdiction in a particular matter, the
children’s court before which the child is brought
has
jurisdiction in the matter.
Section
45(4) of the Act provides that
:
“Nothing in this Act shall be construed as limiting the
inherent jurisdiction of the High Court as the upper guardian of
all
children. In my view, ss44 (2) and 45(4), read together with the
authorities cited herein above place it beyond doubt that
this Court,
as the upper guardian has jurisdiction over the minor child.”
[7] The
matter of
lis
,
it is common cause that it relates to the application which was
brought
by the
applicant in the Pretoria Magistrate’s court for purposes of
asserting
his rights as
the biological father of the child, in terms of s18 of the Act.
That matter was not further
prosecuted. Section 45(4) of the
Children’s
Act
provides that
“
Nothing in this Act shall be
construed as limiting the inherent jurisdiction of the High Court as
upper guardian of all children”.
In
my view, the jurisdiction of this Court cannot be thwarted on the
basis of a matter which the parties have abandoned. I therefore
find
that there is also no merit on this point of
lis
pendent
and stands
to be dismissed.
[8] When
the matter came before Mabuse J, three photos were placed before the
Court. The photo “
A”
at paginated page 64 shows the little girl, whose facial expression
does not show radiance but rather an unhappy and stressed child.
Photo “
B”
at paginated page 65 shows the face of the little girl’s right
face, with what seems to be blue eye (associated with blunt
trauma
injuries). Photo “
C”
at paginated page 66 shows three almost round marks at the back more
or less along the spinal cord region and extending from the
waist
downwards. There is also a vertical dark mark just above the pants or
underwear. The respondent, without disputing the other
marks, said
the latter mark is a birth mark. There is also annexure “
E”
at paginated page 71 which is the report by a medical practitioner,
Dr Du Plessis who examined the child, and is dated 17 July
2015. The
clinical findings recorded are:
“
No
physical obvious injuries. More emotional injuries, child was very
distressed when I wanted to examine her. She didn’t
want to
leave her dad and refused me to undress her. She was visibly
distraught and crying. Child was crying + restless when I
wanted to
examine her.”
[9] For
the applicant to approach the Court on urgent basis for the relief
sought, in the light of the marks and the clinical findings
of the
doctor who examined the child, can never amount to an abuse of the
court process. In my view, where there is an indication
of abuse on a
child, it is commendable for a concerned person to urgently approach
the courts for the protection of the child.
It would be irresponsible
not to approach the Court when there are signs of trauma and abuse on
the child.
[10] It
is common cause that the respondent obtained a protection order at
the magistrate’s court of Sasolburg with additional
orders
against the respondent for the return of the minor child, and a
warrant for his arrest; on the 17 July 2015. It is common
cause that
the order of Mabuse J cancelled this warrant of arrest, which is in
my view final.
[11] In
my view, faced with a situation of possible arrest and a child who
showed all signs of abuse, the applicant approached the
Court on ex
part urgent basis. I am of the view, that both these factors,
justified that the applicant should approach the court
as he did, and
it cannot be said that he abused the court process. In the premises
this Court finds that this last mentioned point
in
limine
, also has no
merit. In the premises all three points
in
limine
are
dismissed.
[12]
With the points i
n
limine
having been
disposed of, the Court needs to deal with the reconsideration of the
order of Mabuse J. The respondent has since filed
her affidavit. The
Court is to approach the matter on the basis that the versions of
both respective parties are now before it,
which was not the case
when Mabuse J granted his order. The warrant of arrest has since been
cancelled. This is final and cannot
be reversed. The child has since
been placed in the care of the applicant, pending the finalisation of
Part B of the notice of
motion. In reconsidering this latter order,
the Court will consider the respective versions of the parties. In
this regard
vide The
Reclamation Group (Pty) Ltd v Smit and Others.
[7]
[13] The
version of the applicant tersely put was that: the parties met in
Potchefstroom and went into a relationship about March,
April May
2012 and ended the relationship in 2014. The child was born in
[......]. When the child was born he bathed her, changed
her diapers,
and spent most of the time with her. He and the child have a much
knit bond. The child does not leave him, sees him
as her protector
and loving father. He has a support structure in the form of his mom
and father who financially assists both him
and the minor child
financially. I must hasten to state that the respondent has not
disputed these averments.
[14]
According to the applicant, when the child was born the respondent
was not that much close to the child. He further averred
that
the respondent suffered manic depression or deep depression. When the
relationship ended the respondent went to stay with
her parents in
Sasolburg. When the child visited him
in
November 2012 he noticed some changes on the child. She no longer
played, laughed or run around and was emotionally distant.
In
December 2012 he noticed bruises on her left arm biceps, which to him
looked like finger marks. The respondent informed him
that the girl
fell. In January he noticed deep swelling on her face and blue mark
on her eye. The respondent told him that children
get hurt all the
time and it is not serious. The applicant said he has two photos to
prove this. The respondent in regard to the
injuries on the face of
the child said that she walked into a wall.
[15] The
applicant and the respondent subsequently reached an agreement that
the child would be with him from Thursday to Sunday
and be with the
respondent from Sunday to Thursday. The respondents’ father is
drinking most of the time. During December
the child reacted
differently on seeing the photos of her paternal grandparents
remarking that “
oupa
speel”,
and
to the maternal grandparents that “
oupa
slaan”.
On
the latter remarks the child’s demeanour changed and she
started crying. In March 2015 when he tried to lift child’s
shirt she would not let him. It is then that he noticed finger marks
on the child, similar to the earlier finger marks. On the
16 July he
noticed marks at the back of the child. The mother told him that
these could have been caused by the car seatbelt. On
the 17 July he
had the child examined by a doctor who completed a J88 form. The
child refused that doctor should l lift her dress
up. I have earlier,
herein above referred to the exhibits “
A”,
“
B”, “C”
and “
E”
[8]
it is not necessary to repeat what is contained therein. I will,
however, later revert to these exhibits.
[16] The
respondent contended that she is the sole guardian of the child and
applicant only has contact rights. I must hasten
to state that
this submission may well have been correct prior to the advent of the
Children’s
Act
.
[9]
The rights of the applicant, as the biological father of the child
are now much broader than mere contact rights.
[10]
[17] The
respondent admits that the child had certain injuries although she
ascribed them to an “unfortunate incident”.
She however,
contended that there are certain contradictions in this regard
because in an earlier application in the Magistrate
‘Court, the
applicant referred to other incidents in November 2014.
[18] The
respondent contends that the applicant never informed her that the
child had emotional problem. She does not challenge
the contents of
the J88, save to state that the doctor could have through the
assistance of the applicant lifted the child’s
dress and
examined her. She seems to be disputing that the child had these
marks referred to in photo “
C”
alternatively that the photo is not recent but relates to injuries of
March 2015. In respect of the report of Ms Van Schalkwyk,
the
respondent’s chagrin against it was that the former examined
the child without her consent, and has instructed her attorneys
to
report Ms Van Schalkwyk to the Health Professional Council. She
however pointed out that according to Van Schalwyk, the child
needs
more time with the primer parent as she is in her development stage
and might be adversely affected the longer she is not.
She
opined that the interim order will be detrimental to the child.
[19] The
respondent further denied that there were ever any bruises on the
child and further stated that these would have been noticed
by the
personnel at the crèche where the child attends. She further
denied that she or her parents ever abused the child
and blends as
lies the allegations of the applicant regarding any emotional or
physical abuse on the child.
[20] The
applicant alleged that there were visible marks on the child. In this
regard he placed photos before the Court. The respondent
admits that
there were certain injuries or marks on the child, but gives her own
explanation as regards the course thereof. The
applicant’s
averments of certain behavioural changes on the child, her withdrawal
and refusal that her dress be lifted, finds
confirmation in report of
Ms Van Schalkwyk which was placed before Mabuse J as annexure “D”
and reads as follows:
“
OBSERVATIONS
OF PHYSICAL DISCOMFORT
During
the session of March 2015 L’s behaviour was surprisingly
withdrawn.
She wanted to keep her dummy in
her mouth, which normally she does not. She scrambled away when her
father wanted to lift her jersey
and started crying.”
[21] In
the matter of
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[11]
it was held that: “where, in proceedings of this nature,
disputes of facts have arisen on the affidavits, a final order,
whether it be an interdict or some form of relief, may be granted, if
those facts averred in the applicant’s affidavit have
been
admitted by the respondents, and together with the facts alleged by
respondent, justify such an order. The power of the Court
to give
such final relief on the papers before it is, however, not confined
to such a situation. In certain instances the denial
by the
respondent of a fact alleged by the applicant, may not be such as to
raise a real, genuine or
bona
fide
dispute of
fact. See in this regard
Room
Hire Company Room Hire Company (Pty) Ltd v Jeppe Street Mansions
(
Pty) Ltd
1949 (3)
SA 1155
(T) at 1163–5.”
[22] In
my view, the facts placed before Mabuse J reveal, as shown in the
exhibits that the child was at one or other stage abused.
The denials
of the respondent as to the cause of the marks does not negate an
inference that the respondent is failing in ensuring
the safety,
protection and wellbeing of the child. On the admitted facts and the
empirical evidence, Mabuse J was, in my view,
correct in granting the
order prayed for.
[23] In
the result the application for reconsideration of the order of the 20
July 2015 of Mabuse J is dismissed with costs.
______________________
N .M. MAVUNDLA
JUDGE OF THE
COURT
DATE OF
HEARING :
07 / 08 / 2015
DATE OF
JUDGEMENT: 19
/ 08 / 2015
APPLICANT’S
ADV :
ADV VAN
SCHALKWYK (Ms)
INSTRUCTED BY
:
VENN
MULLER
ATTORNEYS
RESPONDETS’
ADV :
ADV. VILJOEN (Ms)
RESPONDENTS’
ATT :
NOLTE INCORPORATED
[1]
2007 (1) SA 189
(CPD) at 193 par[9] to
[10].
[2]
Vide J v J
2008 (6) SA 30
(CPD) at 37D
[3]
2011 (3)SA 126 (SCA) at 136.
[4]
[2007] ZACC 27
;
2008 (3) SA 183
(CC) para 30.
[5]
De Gree and Another v Webb and Others (Centre
for Child Law as Amicuriae)
2007
(5) SA 184
(SCA) para 99.
[6]
2008 (6) SA 30
(CPD) at 37H and referred to in
FS
v JJ supra
at 137B.
[7]
2004 (1) SA 215
(SECLD) at 218.
[8]
Vide para[9] supra.
[9]
Vide Ex Parte Kedar and
another
1993 (1) SA 242
(WLD) at 243I.
[10]
Vide ss 18, 23, 24, et 28 of the Act.
[11]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E–635C.