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[2012] ZAGPPHC 182
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Louw v Rousseauw and Others (5211/2012) [2012] ZAGPPHC 182 (21 August 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: 5211/2012
DATE:21/08/2012
In
the matter between:
SINDY
- LEE LOUW
….............................................................................
APPICANT
AND
GIDEON
ROUSSEAUW (JNR)
…..........................................................
FIRST
RESPONDENT
ADRI
ROUSSEAU
...................................................................................
SECOND
RESPONDENT
GIDEON
ROUSSEAU (SNR)
…...........................................................
THIRD
RESPONDENT
JUDGMENT
TLHAPI
J
[1]
This is an application for the following order:
"1.
That the applicant and first respondent have parental rights and
responsibilities in respect of the minor child MIENKIE
ROUSSEAU born
on the 30 October 2010;
2.
That the parental rights and responsibilities of care and primary
residence be awarded to the applicant;
3.
That the first respondent be entitled to rights of contact to the
minor child;
4.
That the second and the third respondent be ordered to forthwith hand
the minor child to the applicant;"
The
first respondent opposed this application and launched a counter
application that temporary custody and the right of permanent
residence be awarded to him subject to applicant's right to
reasonable contact and that the matter be referred to the Family
Advocate
for a full investigation.
For
convenience the minor child shall be referred to as Mienkie. At the
hearing the first respondent indicated that access and visitation
rights would be allowed and that the applicant could reside at the
home of the respondents during such visits. Furthermore that
a
consultation had been arranged with the family advocate for the 29
August 2012.
[2]
The applicant and the first respondent were involved in a
relationship and after the birth of the Mienkie lived together in
Krugersdorp at the residence of the second and third respondent, who
are also the parents of the first respondent. Mienkie was
born on the
30 October 2010.
[3]
During May 2011 the second and third respondent relocated to Skukuza
in Mpumalanga. According to the applicant the Mienkie went
to live
with the second and third respondent with her consent, after they had
offered to assist the applicant and first respondent
financially. At
the time the first respondent was an apprentice and she was looking
for employment.
[4]
The applicant averred that the second respondent and Mienkie
developed a good relationship close with each other. However she
began to experience problems in the manner in which the second
respondent exercised control and access to Mienkie and this extended
to her relatives, in particular her mother. Her complaints were not
heeded. Things came to a head during December 2011 after the
second
and third respondent failed to release the minor child to spend the
Xmas holidays with applicant and her family. As a result
she had to
travel to Skukuza for a few days with the first respondent over the
New Year period.
[5]
The second and third respondent refused to hand over Mienkie after
her stay and this resulted in tension and quarrels between
the
applicant and the respondents and the police and a magistrate were
involved in trying to resolve the problem. The applicant
averred that
she was intimidated and threatened that incidents of her neglect of
the child would be revealed and that she would
only see her child
when she was twenty one. The applicants parents travelled to Skukuza
to fetch her. This application was launched
shortly thereafter.
[6]
The first respondent averred that he no longer lived in Krugersdorp,
he also relocated to Skukuza during 2012. He now resides
with the
second and third respondent and was of the view that it was in the
best interests of Mienkie that she not be removed from
his home. He
denied that there were problems with access to Mienkie. When he
resided in Krugersdorp with the applicant his parents
frequently
visited in order for Mienkie to bond and to be with her parents. He
further denied that the address given by the applicant
was her
mother's house. He mentioned that presently there were nine
individuals resident in that house.
[7]
According to the him the second respondent took over the
responsibility of care for Mienkie. His relationship with the
applicant
was fraught with problems. They quarrelled a lot and they
were not financially stable. There was an agreement that the second
respondent
take over the responsibility for Mienkie because she was
unemployed and in a better position to attend to her daily needs. The
first respondent averred that after applicant left with her parents
she had never been to see Mienkie or made contact with her.
In
support of his contention that it was in the best interests of
Mienkie that she remain with the second respondent he annexed
to his
answering papers affidavits obtained from his sisters, the police and
a social worker and requested the court to give an
order on the
recommendations of the latter.
[8]
In her replying affidavit the applicant averred that first respondent
had not discussed his relocation to Skukuza with her.
She believed
that there was a conspiracy to deprive her permanently of Mienkie.
She never agreed to hand over Mienkie permanently
to the second
respondent, it was a temporary arrangement to assist first respondent
and herself because they were financially dependant
upon them and she
had to find employment.
[9]
In dealing with this matter I have taken into consideration
submissions made on behalf of both parties. I do not deem it
necessary
to deal with the complaints levelled against each other in
detail. I am also mindful of the fact when dealing with such matters
an environment should be created in order to allow and encourage the
minor child to develop a relationship and to bond with both
parents.
I further take into consideration that the applicant and first
respondent's relationship has been problematic.
9.1
When the second respondent took over the responsibility to take care
of Mienkie, it was to assist both her son (first respondent)
and
applicant because they quarrelled a lot; they were not financially
stable and applicant had to find employment; Whatever agreement
was
entered into was not enforceable in terms of the law and could not be
used to deprive applicant the opportunity, now that she
was in a
position to do so, to live with Mienkie permanently.
Applicant
is no longer living with the first respondent. She has a place to
stay, is employed and is in a position to put Mienkie
into a creche
nearby while at work.
9.2
There was no history of serious neglect of Mienkie by the applicant
that required intervention to determine primary residence
of Mienkie.
An investigation by the Family Advocate is in my view premature.
While the applicant acknowledges that there is a good
relationship
between the second respondent and Mienkie, it was in the best
interests of Mienkie that she developed a stable relationship
her
mother. It is only where this has failed and for good reasons and
after proper investigations that the minor child shall be
placed with
someone else.
9.3
The annexures to the answering affidavit from the first respondent's
sisters, the social worker and police officer are of no
assistance in
determining the best interests the child. The applicant must be given
an opportunity to prove herself and assisted
before drastic steps are
taken to remove the child from her.
9.4
After the January incident and the tensions that developed between
the applicant and the first respondent's family, it is in
my view
improbable that the applicant would be comfortable in the residence
of respondents. In as much as first respondent mentions
that the
applicant has made no contact with the child since that time, he had
a responsibility also to make it possible for applicant
to see
Mienkie by visiting the applicant to ensure that despite the tensions
applicant kept contact with Mienkie. In my view, the
offer to allow
access and visitation rights to the applicant within the environment
of the respondents home was impractical (as
stated in the replying
affidavit), because there was no guarantee that the situation that
prevailed in January would not repeat
itself and there was a great
risk of further alienating the applicant. Furthermore the arrangement
entailed unnecessary expense
for the applicant.
[10]
The order that follows takes into consideration that the applicant
intends
putting
Mienkie into creche while at work. Should this order interfere with
her attendance or should the creche not approve of Mienkie's
absence
for a week, the parties may engage in an alternative arrangement
approved by the Family Advocate and such agreement must
be approved
by the court on the existing papers.
[11]
In the result I make the following order:
(1)
That the applicant and first respondent have joint parental rights
and responsibilities in respect of the minor child Mienkie
Rousseau;
(2)
That parental rights and responsibilities of care and primary
residence of the minor child be awarded to the applicant and that
the
respondents are ordered to release Mienkie into the care of the
applicant at Skukuza on the 25 August 2012;
(3)
That the first respondent be entitled to rights of contact with the
minor child to be exercised as follows:
3.1
That the first respondent is entitled to remove the minor child and
to take her to Skukuza once every two months on a Friday
in order to
spend a week with her and that the minor child be returned to the
applicant on the Sunday of the following week. This
removal shall
commence at the end of September 2012 and shall not include the Xmas
week of 2012.
TLHAPI
V V
(JUDGE
OF THE HIGH COURT)
MATTER
HEARD ON:13 AUGUST 2012
JUDGMENT
RSERVED ON:14 AUGUST 2012
ATTORNEYS
FOR THE APPLICANTS:SCHOLTZ ATTORNEYS
ATTORNEYS
FOR THE RESPONDENTS:PJ LOURENS ATT.