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[2013] ZAECELLC 7
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Sullivan v Olivier (EL 1107/2013, ECD2607/2013) [2013] ZAECELLC 7 (10 September 2013)
9
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE CIRCUIT
LOCAL DIVISION, EAST LONDON)
Case no: EL 1107/2013
ECD2607/2013
Date heard: 5.9.2013
Date delivered:
10.9.2013
In the matter between:
R SULLIVAN
....................................................................................................
Applicant
vs
A OLIVIER
....................................................................................................
Respondent
JUDGMENT
TSHIKI J:
A) INTRODUCTION
[1] Applicant herein has
approached this Court by way of urgency for an order,
inter alia
,
that:
[1.1] the Family Advocate
institute an enquiry and furnish a report with regard to the issues
herein to this Court;
[1.2] directing that,
pending the finalisation of this application in respect of the minor
child, A J O born on 31 March 2011:
[1.2.1] parental rights
and responsibilities as defined in section 18(2)(c) of the Children’s
Court Act 38 of 2005 (the Children’s
Act) are conferred equally
on the applicant and the respondent in that the parties are
co-guardians of A;
[1.2.2] the applicant
shall remain the primary carer of A whose primary place of physical
residence shall be with the applicant;
[1.2.3] the respondent
shall be entitled to reasonable contact with A at all reasonable
times, which access shall include, but not
be limited to:
(a) every alternate
weekend from a Saturday morning at 09h00 until 17h00 and from 09h00
until 17h00 on the Sunday;
(b) reasonable telephonic
contact;
(c) special occasions
such as Mother’s Day, Father’s Day and the parties
relevant birthdays, shall be spent by A with
the relevant parent,
where possible;
(d) the parties shall
negotiate in advance about contact arrangements in respect of A’s
birthday, so that both parties are
able to spend time with him;
(e) Christmas and New
Years shall alternate between the parties.
[1.2.4] the respondent
shall contribute to A’s maintenance, by the payment of cash in
the sum [of] R3 300.00 per month
in advance on the first day of
each and every month to the applicant, which payment shall be
effected into applicant’s banking
account (R Sullivan, First
National Bank, Account Number (Removed) branch code 210221); such
maintenance to commence from 1 October
2013.
[1.3] That the orders in
paragraphs 4 serve as an interim order with immediate effect, pending
finalization of this application.
[1.4] Further and/or
alternative relief.
B) FACTS
[2] Applicant is the
mother of the minor child A J Olivier (A) born on 31 March 2011 and
his biological father is the respondent
Mr A Olivier.
[3] At the time of his
birth A’s parents were in a permanent life-partnership
relationship and thus acquired full and equal
parental
responsibilities and rights in respect of A.
[4] The parties herein
have now separated and the purpose of this application is therefore,
inter alia
, to confirm and to grant certain rights to both
parents so that in the best interest of their minor child A, there is
certainty
in respect of his primary care contact with the child by
both parents as well as maintenance to support his basic needs.
[5] In her papers
applicant avers that the minor child and herself have been subjected
to harm at the instance of the respondent
who has threatened to
remove the minor child from the care of the applicant. The parties
are no longer staying together and that
applicant is now staying with
the minor child A.
[6] I must say though
that I have granted leave to the applicant to move this application
as a matter of urgency only on the basis
of the averments contained
in paragraph 5 above.
[7] The matter was argued
before me after both parties had filed their founding and answering
affidavits respectively.
[8] During argument Ms
Marais appeared for the applicant and Mr Bester for the respondent.
[9] The main crux of Mr
Bester’s argument is that this matter is not urgent and that
the Court cannot deal with the applicant’s
maintenance
complainant in this Court more so by way of urgency.
[10] In the little time I
have in preparing this judgment I will endeavour to address the
important issues raised by the parties
herein. Firstly I must
emphasize that this Court is and has always been regarded as the
upper guardian of all minors in all matters
concerning children.
Section 28(1) of the Constitution provides,
inter alia
, that
every child has the right to family care or parental care when
removed from the family environment. To basic nutrition, shelter,
basic health care services and social services. To be protected from
maltreatment neglect, abuse or degradation. It is also important
to
mention that a child’s best interests are of paramount
importance in every matter concerning the child.
[11] Ms Marais has
submitted that the grounds of urgency herein are based solely on the
basis that respondent threatened to remove
A from applicant’s
care and from applicant’s belief and concern that A would be
subjected to exposure to harm when
in the care of the respondent.
However, she has submitted that if the Court finds that the matter is
not urgent the Court will
not be entitled to simply dismiss the
application on the ground of lack of urgency alone because urgency is
a matter of form and
not substance. She relied on the judgment in
Commissioner,
SA Revenue Services v Hawker Air
Services
2006(4) SA 292 (SCA).
[12] It is a common
practice for some practitioners who appear in the High Court to apply
for the dismissal of an application on
the only ground that it is not
urgent. In my view, if the Court is of the view that an application,
although brought by way of
urgency, is not urgent, there is no
salutary practice that such an application has to be dismissed on the
grounds of lack of urgency
alone. In the
Revenue Services v
Hawker Air Services
quoted above Cameron JA (as he then was)
at page 299 para [9-11] remarked as follows:
“
One of the
grounds of which Patel J dismissed the applications was that at their
inception they had lacked urgency. This was erroneous.
Urgency is a
reason that may justify deviation from the times and forms the Rules
prescribe. It relates to form, not substance,
and is not a
prerequisite to a claim for substantive relief. Where an application
is brought on the basis of urgency, the Rules
of Court permit, the
Rules of Court (or a Judge in chambers) to dispense with the forms
and service usually required, and to dispose
of it ‘as to it
seems meet’ (Rule 6(12)(a)) … Where the application
lacks the requisite element or degree of
urgency, the Court can, for
that reason, decline to exercise its powers under Rule 6(12)(a). The
matter is then not properly on
the Court’s roll, and it
declines to hear it. The appropriate order is generally to strike the
application from the roll.
This enables the applicant to set the
matter down again, on proper notice and compliance.”
[13] I am of the view
that the present case was properly filed as an urgent matter based on
the issue I have alluded to
supra
. However, it seems to me
that the respondent disagrees with the averments made by the
applicant relative to urgency in that respondent
had threatened to
remove A from appellant’s care and custody. In my view, if the
applicant still intends to pursue the issue
the matter would have to
be referred for oral evidence. However, the issue of the minor
child’s rights in terms of section
18(2) could best be
addressed by the family advocate’s report. It would suffice for
this Court at this stage to grant an
interim interdict pending the
finalization of those issues in this application which relate to the
child’s rights in terms
of section 18(2) of the Children’s
Act 38 of 2005.
[14] Relative to the
issues in this case it is important to state that a co-holder of
parental responsibilities has the right to
apply to the High Court,
divorce Court or to the Children’s Court for an order
suspending for a period or terminating any
or all the parental
responsibilities and rights which a specific person has in respect of
a child. Or extending or circumscribing
the exercise by that person
of the parental responsibilities and rights that person has in
respect of a child. Such application
may be combined with an
application in terms of section 23 of the Children’s Act for
the assignment of contact and care in
respect of the child to the
applicant in terms of that section. In other words the grounds of
application by the applicant herein
relative to the parental rights
and responsibilities as well as guardianship of a minor child can be
brought before this Court.
I must also say though that this Court is
not limited by any law in making any order relating to the interests
of the children.
[15] In the present
matter what is also important is the issue of the role of the Family
Advocate relating to the institution of
an enquiry on the child’s
rights in terms of section 18(2)(c), 19,20 and 21 of the Children’s
Act 38 of 2005. There
is, therefore, no bar preventing this Court
from dealing with those issues even those relating to maintenance for
that matter.
As I have alluded to above those issues have not been
raised by way of urgency as the respondent has contended.
[16] Ms Marias has also
argued that the parties to this application lived a permanent life
partnership as though they were a married
couple. In the event that
they had instituted divorce proceedings, they would have been able to
make use of Rule 43 proceedings,
a mechanism,
inter alia
, for
speedy and effective resolution of maintenance for minor children.
Therefore, she argues that applicant should not be prevented
from
approaching the Court for the relief that relates to maintenance as
she would be entitled had she had done in divorce proceedings.
In her
view, this therefore, amounts to unfair discrimination against
children of unmarried parents.
[17] I do not deem it
necessary to deal with the issues raised by Ms Marais in paragraph 16
above. I say so because, by reason of
time constraints, I cannot
apply my mind fully to the issue. I can only state that Rule 43
applies only to matrimonial proceedings
instituted by spouses seeking
relief in respect of one or more of the matters referred to in Rule
43. In this case there is no
pending matrimonial action and
therefore, in my view, the facts of the present case are
distinguishable from a situation where
the provisions of Rule 43
finds application.
[18] As already alluded
to supra there is nothing preventing this Court from dealing with the
maintenance issue even if it is a
provisional order of maintenance
pending the finalization of the maintenance court enquiry. My view is
that in all maintenance
matters involving children the court should
endeavour to see to it that they are dealt with as expeditious as is
practically possible.
It would not be in the best interests of A if
the maintenance issue would be referred back to the maintenance court
especially
when there is already an indication that it will only be
dealt with sometime in October 2013. Therefore, as already intimated
in
his answer, respondent will have to file his supplementary
affidavit indicating how much he can afford as a maintenance
contribution
towards the child in issue. Payment of that amount will
have to be immediately implemented pending the outcome of the enquiry
as
to the appropriate amount.
[19] The finalization of
issue relating to the parental rights and responsibilities of the
child A will depend on the availability
of the Family Advocate’s
report in line with paragraph 3 of the notice of motion. This is
important especially when one has
regard to the contents of annexure
A5 annexed to the answering affidavit
[20] In the light of what
I have said above I make the following order:
[20.1] That the
applicant’s non-compliance with the time limits and forms of
service provided in terms of the Uniform Rules
of Court in hearing
para 1 of the certificate of urgency as a matter of urgency in terms
of Rule 6(12) of the Uniform Rules is
hereby condoned.
[20.2] That the Family
Advocate is directed to institute an enquiry and furnish a report
with regard to the issues herein to this
Court relative to the
interests of the minor child A, in terms of section 18(2) of the
Children’s Act 38 of 2005.
[20.3] That pending the
finalization of this application and in the interests of the minor
child, A J O:
[20.3.1] parental rights
and responsibilities as defined in Section 18(2)(c) are conferred
equally on the applicant and the respondent
in that the parties are
co-guardians of A;
[20.3.2] the applicant
shall remain the primary carer of A whose primary place of physical
residence shall be with the applicant;
[20.3.3] the respondent
shall be entitled to reasonable contact with A at all reasonable
times, which access shall include, but
not be limited to:
[20.3.1] every alternate
weekend from a Saturday morning at 09h00 until 17h00 and from 09h00
until 17h00 on the Sunday;
[20.3.2] reasonable
telephonic contact;
[20.3.3] special
occasions such as Mother’s Day, Father’s Day and the
parties’ relevant birthdays, shall be spent
by A with the
relevant parent, where possible;
[20.3.4] the parties
shall negotiate in advance about contact arrangements in respect of
A’s birthday, so that both parties
are able to spend time with
him;
[20.3.5] Christmases and
New Years shall alternate between the parties.
[20.4] The respondent
shall contribute to A’s maintenance by the payment to applicant
in cash the sum which would be stated
in his supplementary affidavit
per month in advance on the first day of each and every month which
payment shall be effected into
the applicant’s banking account
(R Sullivan, First National Bank, Account number 62202818491, branch
code 210221, such maintenance
shall be paid not later than two weeks
from date of delivery of this order hereof until the amount is
substituted by a subsequent
order of this Court relating to the
maintenance of A.
[20.5] That respondent is
hereby interdicted from threatening to remove A from the applicant.
[20.6] That paragraphs
[20.5] of this order shall operate as an interim interdict with
immediate effect pending the finalization
of this application.
[20.7] That costs of this
application including that of the argument on 5
th
September 2013 shall be costs in the cause.
[20.8] That all the
remaining issues in this application are postponed to the 25
th
September 2013.
_________________________
P.W. TSHIKI
JUDGE OF THE HIGH COURT
Counsel for the applicant
: Ms D.J. Marais
Instructed by : DJ Marais
Attorneys
45 Pearce Street
Berea
EAST LONDON
Ref no: DJ Marais/S1
Counsel for the
respondent : Adv Bester
Instructed by : Wylde &
Ruchman Inc
Motorland Building
Cnr Fleet & Oxford
Street
EAST LONDON
Ref no: Ms T Wylde