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[2013] ZANCHC 25
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T.M.C v T.C (268/2013) [2013] ZANCHC 25 (15 March 2013)
1
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IN THE HIGH COURT OF SOUTH AFRICA
(Northern Cape High Court, Kimberley)
Case No: 268/2013
Heard: 22/02/2013
Delivered: 15/03/2013
In
the matter between:
T MC
........................................................................................................
Applicant
.
v
T C
.........................................................................................................
Respondent
JUDGMENT
MAMOSEBO AJ
[1] I had ordered the following after hearing the
argument on 22 February 2013:
Applicant and respondent shall be co-holders of full
parental rights and responsibilities in respect of the two minor
children,
M
and
M T,
as contemplated in
s 18
of the
Children's Act, 38 of 2005
;
The minor children shall have their primary residence
with the applicant;
The applicant shall have the responsibility and right
to care for the children as contemplated by ss 18(2)(a) and 1(1) of
the
Act; 38 of 2005;
The respondent is to forthwith return the minor
children to the care of the applicant;
The respondent shall have the right and obligation to
maintain reasonable contact with the children as contemplated by s
18(2)(b)
read with s 1(1) of the Act, in Kuruman.
In the event that the respondent fails to comply with
para 4 of this order the sheriff of the district where the minor
children
currently resides is authorized and ordered to remove the
children from the care and residency of the respondent and to place
them in the care and residency of the applicant;
The family advocate, Kimberley, is ordered to
immediately investigate the dispute pertaining to the contact rights
and care of
the minor children and to submit a report to this court;
The orders set out in paras 1-5 are to operate with
immediate effect pending the Court’s determination of the
issues under
case 1547/2012.
The issue of costs will be dealt with in the judgment;
Reasons are reserved.
I now provide my reasons.
[2]
This matter first came before me as an urgent
application on 19 February 2013 and was postponed to Friday 22
February 2013 at 14:15.
A draft order by agreement was submitted
which was made an order of court affording the respondent the
opportunity to file her
opposing affidavit on or before Wednesday 20
February 2013 at 16:00 and the applicant to file his replying
affidavit on or before
Thursday 21 February 2013 at 16:00.
[3]
The following relief was sought by the
applicant, Michiel Conraad Terblanche:
3.1. Condoning the applicant’s failure to comply
with the Rules of this court in relation to forms, time periods, and
service,
and permitting this matter to be heard urgently in
accordance with the Uniform Rules of Court 6(12)(a).
3.2. That a rule nisi be issued calling upon the
respondent to show cause or submit reasons, if any, on or before
Friday 15 March
2013 at 10:00 why the following order should not be
made:
(a) That the respondent be ordered to return the
parties’ minor children M C and M to the applicant’s
care;
(b) That the respondent pay the costs of this
application;
(c) That an interim order for immediate execution be
made to the Sheriff of the district where these minor children may be
found,
authorizing him or her to remove the minor children from the
care of the respondent and to hand them over to the applicant; and
(d) Further and/or alternative relief.
[4]
This matter, which is clearly urgent,
involves two minor children aged eight and four years. They were
removed by the respondent,
their mother, from Kuruman to Thabazimbi.
Hence applicant’s request for urgent relief for the minor
children to be returned
to Kuruman. Uncertainty around the children
with regards to their permanent residency and best interests being of
paramount importance
contributed to the urgency and was a factor I
considered in granting the relief.
[5]
The matter was heard on the afternoon of 22
February 2013. Argument was presented by Ms Sieberhagen on behalf of
the applicant
and Mr van Tonder on behalf of the respondent.
The background
[6]
The marriage between the applicant, M C T,
and the respondent, C T, still subsists. They resided at 33 Hibiscus
Street until 13
February 2013 when Mrs T left the common home
surreptitiously with the two minor children for Thabazimbi. Prior to
her leaving
Kuruman there was already a pending divorce action and a
Rule 43 application, both under case number 1547/2012. The applicant
is
opposing both the divorce action and the Rule 43 application. He
further states at para 5.3 of his founding affidavit:
‘
Een van die grootste dispute tussen my en
respondente in die egskeiding, is die versorging van ons minderjarige
kinders. Die respondent
het aanvanklik die Reẻl 43 aansoek
geplaas vir argumentering op 15 Februarie 2013, maar sou die aansoek
nie behoorlik bereg
kon word alvorens die Gesinsadvokaatsondersoek
nie gefinaliseer is nie. Die respondent se prokereur van rekord het
bygevolg voortgegaan
om die aansoek van die rol te verwyder’.
[7]
The applicant’s attorneys of record
have in anticipation requested the Family Advocate’s office to
conduct an investigation
with a view to the primary care and
residency of the two minor children.
[8]
The chain of events between the parties was
triggered in January 2013 when applicant saw application forms among
respondent’s
documents for Koedoeskop Primary school, which is
in Thabazimbi. In his words: ‘ek was opreg bekommerd dat die
respondent
‘n impulsiewe en irrasionele besluit sou neem om ons
kinders uit hul stabile omgewing te verwyder’.
[9]
Consequently, applicant contacted his
attorneys who wrote a letter to Mrs T’s attorneys on 14 January
2013 requesting an
undertaking in writing not to remove the minor
children out of school and out of Kuruman until the Rule 43
application has been
heard. Seeing that there was no response, a
follow-up letter dated 4 February 2013 was dispatched. There was
still no response
from the respondent’s attorneys.
[10]
I was referred to an e-mail marked “annexure
D” exchanged between Mrs T and her husband dated 31 January
2013 in which
Mrs T wrote, inter alia:
“…
.maar ek het nuwe geleenthede in my lewe
gekry waar ek myself kan vestig in ‘n beroep met goeie
geleenthede en ‘n maatskappy
met baie groei potensiaal, ek sal
ook die vryheid hê om my skedules so te skeduleer om aan te pas
by die kinders... Ek wil
graag so gou as moontlik trek, verkieslik
voor middel Februarie. Ek verloor te veel besigheid omdat ek nie
kliente betyds kan sien
nie”.
[11]
In response to this e-mail, on the same day,
applicant wrote:
“
Dankie vir jou eerlikheid. Ek vra jou om my tyd te gee
voordat ek en jy praat. Miskien tot na die naweek, maar ek sal jou
laat weet
indien ek reg is. Vir my om te kan besluit het ek egter nog
inligting nodig rondom jou werk. Is dit moontlik dat jy my meer
inligting
rondom dit kan gee?”
[12]
In the midst of all the suspense of not
knowing what the response or the reaction of the respondent would be
due to the non-response
to the applicant’s attorney’s
letters, the respondent surreptitiously left the common home, taking
the minor children
without the knowledge or involvement of the
applicant.
[13]
The guiding principle when a court is faced
with issues involving minor children is to move from the premise that
their best interests
are of paramount importance as provided in s
28(2) of the Constitution of the Republic of South Africa 108 of
1996. This standard
is echoed in s9 of the Children’s Act, 38
of 2005, which states that ‘
in all matters concerning the
care, protection, and well-being of a child the standard that a
child’s best interest is of
paramount importance, must be
applied’
.
[14]
International law also requires parties to
adhere to the standard of the best interest when dealing with the
issues of children.
See art 3(1) of the United Nations Convention on
the Rights of the Child (CRC) and art 4(1) African Charter on the
Rights and Welfare
of the Child (ACRWC). See also F Viljoen “The
African Charter on the Rights and Welfare of the Child” in
Boezaart (ed)
Child Law in South Africa (2009) 331 342 and
T
Davel ‘The African Charter on the Rights and Welfare of the
Child: Family Law and Children’s Rights’ (2002)
2
De
Jure
281 283.
[15]
Ms Sieberhagen, for the applicant, argued
that the removal of the minor children while there is pending
litigation, namely divorce
action and the Rule 43 application under
case number 1547/2012, as well as the outstanding Family Advocate’s
report, amounts
to the respondent taking the law into her own hands.
I must agree with the submission that Mrs T could not unilaterally
decide
to relocate without proper consultation or agreement with the
father of the minor children and while the legal processes were
pending.
Her conduct would also delay the legal process for the
interim relief sought by the applicant and the compiling of the
report by
the Family Advocate because it will necessitate the
involvement of the Family Advocate serving in Thabazimbi.
[16]
Rule 43 of the Uniform Rules of Court is
meant to be dealt with as inexpensively and expeditiously as
possible. This Rule, in terms
of which Mrs T sought interim relief
pending the divorce action, provides for these applicable instances:
(1)
This rule
shall
apply
whenever a spouse seeks relief from the court in respect of one of
the following matters:
Maintenance pendente lite;
A contribution towards the costs of a pending
matrimonial action;
Interim custody of any child;
Interim access to any child.
(4) As soon as possible thereafter, the registrar
shall bring the matter before court for summary hearing, on ten day’s
notice
to the parties, unless the respondent is in default;
(5) The court may hear such evidence as it considers
necessary and may dismiss the application or make such order as it
thinks fit
to ensure a just and expeditious decision
(my
emphasis).
[17]
Ms Sieberhagen further argued that
uncertainty pertaining to the child’s future, safety and
well-being on its own forms the
basis for the court to hear the
matter on an urgent basis. Chalskalson P stated in
Fraser v
Naude and Others
1999 (1) SA 1
(CC)
at 5
para 9D:
“
Continued uncertainty as to the status and
placing of the child cannot be in the interests of the child.”
[18]
Further arguments around uncertainty were
amplified by both counsel referring to Exhibit A and “CT 3”.
Exhibit A is
an order of the court in Thabazimbi under Master’s
Reference 23124/08 dealing with the estate of CEM Cornelius. Mr van
Tonder,
for the respondent, argued that the sale of the farms, one of
which is where the respondent and the two minor children are
currently
residing, may still be delayed
.
Ms Sieberhagen
raised a counter-argument supported by “
CT3
”, a
letter by Baartman Attorneys dated 28 January 2013 from which para 4
reads
:
“
Inlig van die feit dat die eksekuteur nou al
voortgaan om die eiendom van die hand te sit, word u derhalwe versoek
om die eiendom
te ontruim voor of op 28 Februarie 2013,by versuim
daarvan, ons opdrag hou met ‘n uitsettingsbevel voort te gaan”.
[19]
Mr Van Tonder further argued that the
children knew and were aware of the impending relocation and that
they are familiar with
the environment because Mrs T’s parents
lived there. Counsel’s argument that the process preceding the
eviction from
that farm was going to take long, referring to the
order granted in 2009 by Thabazimbi magistrate’s court, if
anything, compounds
the uncertainty. The children’s wellbeing
cannot be experimented with or compromised.
[20]
Mr Van Tonder has referred to
Bashford
v Bashford 1957 (1)SACR 21 (NPD) at 24 f.
There Holmes J was
considering the paramount factor being the welfare of the child in
the light of the facts as they existed. Counsel
suggested that maybe
the relocation of these two minor children may be seen as change for
the better. This is mere speculation.
There is no evidence before me
that the environment in the applicant’s home is detrimental to
the welfare of the children.
[21]
It is quite evident that the removal of the
minor children from their home was not carefully thought through. The
decision that
was taken was not to enhance the best interests of the
children as paramount but to address an employment need for Mrs T. As
stated
by Maya AJA in
F v F
2006 (3) SA 42
(SCA) at 53 A
“
Genuine as the appellant’s motivation
is, however, I am constrained to agree with the conclusion of the
trial court that the
practicalities of her decision were certainly
not as well researched and investigated as they should have been”.
[22]
Schäfer in Family Law Services Issue 58
October 2012 para E32 on page 25 says “once a court has been
persuaded to invoke
its powers as upper guardian, it will generally
adopt a robust approach towards procedural constraints. The
conventional adversarial
model of civil proceedings generally yields
to what has been termed a ‘judicial investigation’ into
what is in the
child’s best interests”. See
B v S
1995 (3) SA 571
(A)
and
T v M
1997 (1) SA 54
(A).
[23]
I am enjoined as the upper guardian of these
two minors t judiciously exercise my discretion and to ensure that
their best interests
are not compromised by spousal feud and spite at
the expense of stability for their care, protection and wellbeing. I
am equally
mindful as did Miller J in
Du Preez v Du Preez
1969
(3) SA 529
(D) at 136 B-C
that
“
this is not to say that the opinion and desires of the
custodian parent are to be ignored or brushed aside, 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 reason for the custodian
parent’s decision and the emotions or impulses which have
contributed to it.”
[24]
I have made the initial order to apply with
immediate effect and have asked that the Family Advocate, Kimberley,
immediately investigate
the matter further and to provide an updated
report to this court. It is not in dispute that the matter needs to
be prioritized
by their office in the circumstances.
[25]
I now turn to the order for costs. In my
initial order I had indicated that the issue of costs will be
addressed in this judgment.
It matters in which the custody of
children are involved, there is no winner or loser because what
matters is the best interests
of the child. For that reason, unless
there are compelling circumstances to order otherwise, which none
exist, the most appropriate
allocation ought to be that there be no
order as to costs or each party pays his/her own costs.
[26]
I am aware that the respondent, C T, has
lodged an application for leave to appeal my order issued on 27
February 2013. If she
persists in her application for leave after
having read this judgment, it would be preferable to lodge an amended
application for
leave to appeal if the initial grounds are departed
from. This would eliminate a piecemeal process of application for
leave to
appeal.
ORDER:
It is for the aforegoing reasons that my order was
made.
Each party is to pay his/her own costs.
____________________________
M C
MAMOSEBO
ACTING
JUDGE
Northern
Cape High Court, Kimberley
On behalf of the Applicant: Adv. AS Sieberhagen
Instructed by: Duncan & Rothman Attorneys
On behalf of the Respondent: Adv. AG Van Tonder
Instructed by: M Du Toit, Attorneys