Jonker and Another v Stoffels (1222/09) [2009] ZANCHC 48 (2 October 2009)

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[2009] ZANCHC 48
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Jonker and Another v Stoffels (1222/09) [2009] ZANCHC 48 (2 October 2009)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape,
Kimberley)
Case No: 1222/09
Case
Heard: 27/08/2009
Date
Delivered: 02/10/2009
In
the matter:
J
H JONKER 1
st
Applicant
H
J J A JONKER 2
nd
Applicant
v
FRANCOIS
C STOFFELS Respondent
JUDGMENT
KGOMO JP:
The dispute in this
matter concerns the custodianship of an angelic little girl named "C
S" who was born by means of
a Caesarean section in Tygerberg
Hospital, Cape Town, on 26 January 2006. Her mother Ms Ursula
Yvette Ross who was born on 26
January 1976 suffered from a
congenital heart defect and underwent a heart bypass operation ( a
second in few years) with the
birth of "C " as her heart
was unable to withstand the strain of labour. "C " was
born out of wedlock as
her mother and her respondent biological
father, Mr Francios Christiaan Stoffels, whose surname Curstan
carries, were unmarried.
Ms Ross and the
respondent stayed together in the former's flat for a period of
about one to two years, before the birth of the
child. Accounts on
the period of their cohabitation differ but this is not material.
Ms Ross was discharged with her new-born
baby from Tygerberg
Hospital on 02 February 2006, when "C " was about six days
old. Understandably the respondent
cared for mother-and-child from
such discharge until 05 March 2006. On 06 March 2006 Mrs Jacoba
Hendrina Jonker, "C "'s
maternal grandmother and the first
applicant in this matter, arrived in Paarl from Keimoes, Northern
Cape, where she resides
with her husband and second applicant Mr
Hans Johannes Jacobus Albertus Jonker, to care for her daughter and
granddaughter.
On 13 March 2006 Mrs
Jonker left for Keimoes with her daughter and "C ". On
the applicants' version the purpose was
to nurse their daughter to
health and care for "C ". On respondent's account the
purpose was to show "C "
to the Jonker family. In my view
the versions are reconcilable and inseparable. The fact of the
matter is that the Jonker family
had not seen "C " and Ms
Ross was indubitably still quite sick and in the process of
recuperation. On 17 March 2006
she had a relapse and was advised to
by the Jonker family doctor to return to Tygerberg Hospital post
haste. Mrs Jonker escorted
them back. The hospital was unable to
safe Ms Ross' life (henceforth the deceased) and she died on 28
March 2006. Mrs Jonkers
was looking after "C " in Paarl
at that stage.
Mrs Jonkers departed
to Keimoes with "C " on 30 March 2006 while the funeral
arrangements of the deceased were underway.
She claims to have done
so with the full knowledge and consent of the respondent whereas he
disclaims such implication. Ms
Anderssen, counsel for the
respondent, argued fervently that the Jonkers took the law into
their own hands and virtually accused
them of abducting "C "
from the custody of her father or removing her under false
pretences. She urged that the Court
should not countenance such
conduct. As this aspect was also pivotal in the Family Advocate's
recommendations that "C "'s
custody be awarded to her
father it is necessary to deal in some detail with the removal.
The respondent says
the following in his answering affidavit on "C "'s removal
(Translated):
"Mrs Jonkers took "C "
to Keimoes (on 30 March 2006) without my consent after Ursula's death
(on 28 March 2006).
On the day in question she offered to take care
of "C " to enable me to attend to the payment of some
bills. On my
way back from running these errands I came accross Mrs
Jonker, Ursula's sister and "C " along the way. I was
informed
that they were on their way to Cape Town to attend to some
business. On arriving home I discovered that "C "'s
clothing
was missing. Mrs Jonker told me later by phone that she was
taking "C " to Keimoes. I informed her that I will return

with "C " to Paarl after the funeral. When the funeral was
over (on 8 April 2006) Mr and Mrs Jonker (the applicants)
refused to
hand over "C " to me. Instead they showed me a document
which purports to place "C " in their custody."
In his report dated 18
February 2009 Mr A H Nel, the Family Advocate, makes these
observations,
inter alia
:
"I have, however,
reservations regarding the child’s removal from the first
respondent’s care 3 years ago. Although the
nature of our
investigation curtails us from properly testing the evidence, there
are indications that the minor child was probably
removed from the
respondent’s care without his consent. However, we have to keep in
mind that the ‘removal’ of "C "
happened before the
Children’s Act, Act 38 of 2005 came into operation on the 1
st
of July 2007. The respondent’s legal position was somewhat
different at the time.
Be that as it may, the shunting
about of children should be strongly deprecated. There is, however,
a strong indication that the
applicants precipitated the shunting
about of the child when they removed her and set into motion
proceedings to permanently remove
the child from the respondent’s
care.
If the applicants acted
unlawfully at the time, and it appears to be the case, the child
should be returned to the respondent’s
care even if it might
disrupt her life. A change in circumstances in "C "’s
life seems unavoidable in order to rectify
the actions of the
applicants.
If the change in circumstances is
managed properly the traumatic effect thereof could be minimized.
Finding
. If "C "
is removed from the applicants’ care it would definitely disrupt
her life. However, a change in circumstances
is necessary due to her
apparent unlawful removal from the first respondent’s care.
THE NEED FOR THE CHILD TO
REMAIN IN THE CARE OF HIS OR HER PARENT, FAMILY AND EXTENDED FAMILY,
CULTURE OR TRADITION
The minor child has been in the
applicants’ care for the past 3 years. As I have already
indicated, "C " has received
excellent care over the years
from the applicants. She is a well adjusted little person who has
been very fortunate to have the
applicants in her life. It will
definitely be very traumatic for "C " and the applicants if
she has to return to the
respondent’s care.
The only parents "C "
has come to know over the past 3 years are the applicants. It is
therefore of the utmost importance
that this bond be maintained. The
applicants love her and will be able to enrich her life even further
if they are allowed to
maintain contact with her over the years to
come.
Finding.
It would be in
the best interests of "C " if the applicants have regular
contact with her in future.
CONCLUSTION
I would like to emphasize
the fact that this matter turns on the fact that the minor child was
unlawfully removed from the respondent’s
care. If the child had
been in the lawful care of the applicants my recommendations
regarding permanent residency would have been
different.
Based on the available
information and provided my assumption regarding the unlawfulness of
the minor child’s removal from respondent’s
care is correct, I am
of the opinion that it would be in the best interests of the minor
child if the permanent residency of the
child is awarded to the
respondent provided and subject thereto that a proper integration
process is followed over a reasonable
period of time.
I am furthermore of the opinion
that the applicants should receive the right to have reasonable
contact with the minor child in
future."
I am not at all
persuaded by the contention by respondent’s counsel and the Family
Advocate that "C " was illegally
removed by her
grandmother from respondent's custody. To start with the respondent
moved into the deceased apartment and shacked
up with her. The
partners were obviously not married to each other, neither were they
engaged to marry, nor were they in a permanent
love relationship.
To the extent that the Family Advocate was of the opinion that their
relationship was permanent and used
the presumed permanency as a
factor in favour of the respondent or against "C "'s
grandparents he was mistaken. It
was incumbent upon the respondent
to produce by way of an affidavit with supporting documents, if any,
evidence that he and the
deceased were involved in a permanent
life-partnership that is contemplated in
s21(1)(a)
of the
Children’s
Act, 38 of 2005
. In
National Coalition for Gay and Lesbian
Equality v Minister of Home Affairs
2000(2) SA 1 the Court
(at para 86) said:
“
Permanent in this context
means an established intention of the parties to cohabit with one
another permanently.”
The Court then gave the
following guidelines at para 88, which may be suitably adapted to the
situation of heterosexual partners:
“
[88] Whoever in the
administration of the Act is called upon to decide whether a same-sex
life partnership is permanent, in the
sense indicated above, will
have to do so on the totality of the facts presented. Without
purporting to provide an exhaustive list,
such facts would include
the following: the respective ages of the partners; the duration of
the partnership; whether the partners
took part in a ceremony
manifesting their intention to enter into a permanent partnership,
what the nature of that ceremony was
and who attended it; how the
partnership is viewed by the relations and friends of the partners;
whether the partners share a common
abode; whether the partners own
or lease the common abode jointly; whether and to what extent the
partners share responsibility
for living expenses and the upkeep of
the joint home; whether and to what extent one partner provides
financial support for the
other; whether and to what extent the
partners have made provision for one another in relation to medical,
pension and related
benefits; whether there is a partnership
agreement and what its contents are; and whether and to what extent
the partners have
made provision in their wills for one another. None
of these considerations is indispensable for establishing a permanent
partnership.
In order to apply the above criteria, those
administering the Act are entitled, within the ambit of the
Constitution and bearing
in mind what has been said in this
judgment, to take all reasonable steps, by way of regulations or
otherwise, to ensure that
full information concerning the permanent
nature of any same-sex life partnership is disclosed.”
The respondent has
failed to reach this threshold, even if the guidelines were to be
applied much more liberally or less stringently.
Why, it may be asked,
and regard also being had to the family ties of "C " to
the parties to this dispute, should it
be said that the child was in
the
de facto
custody of the respondent and not concomitantly
in that of her grandmother. She shared the care of the child with
the deceased
from 06 March 2006 and became her predominant
care-giver after the deceased’s death on 28 March 2006. When the
deceased died
an emergency situation existed which called for the
child's grandmother to take charge along similar lines as a
negotiorum gestio
. Which right-thinking person would have
expected the grandmother to say to "C "'s unmarried
father: "There is
your child. You are on your own. I am out
of here. I am going to arrange her mother's funeral (some 700km
away)." I
am also unconvinced that the respondent had a better
right than the applicants during March 2006, moreso in that the
applicable
provisions of the
Children's Act 38 of 2005
only became
operational on 01 July 2007. If the respondent withheld permission
for Mrs Jonkers to depart with her two-months
old granddaughter, as
he alleged he did, which I doubt very much, then such conduct was
extremely insensitive, unreasonable and
unjustified.
The respondent
attended the deceased funeral in Keimoes on 08 April 2006. It was
common cause that all the funeral expenses were
borne by the
deceased's former husband Mr Nico Meyer. This includes the
transportation of the deceased’s body from Paarl to
Keimoes. The
respondent pleaded lack of funds. Immediately after the funeral he
insisted on leaving with "C ". The
applicants sought and
obtained the intervention of the police and a social worker. A
so-called Form 4 Departmental pro-forma
procedure was invoked by the
social worker of Upington, Ms R S E Coetzee, relying on the Child
Care Act, 74 of 1983. She found
the following clause in Form 4 to
be applicable and ticked it.
"Artikel 12(1): Ek het rede
om te glo dat bogenoemde kind ["C S"] sorgbehoewend is soos
bedoel in artikel 14(4)
van die Wet en dat die vertraging van die
lasbrief tot nadeel van die veiligheid en welsyn van die kind sal
strek, op grond"
that the child has no parents or guardian.
It was therefore recommended by her that the child be kept
"in
`n plek van veiligheid by die materne grootouers --- hangende verdere
kinderhof ondersoek ten einde die
verdere
wetsposisie van die kind te bepaal."
The respondent was
notified that the parties have to appear before a Commissioner of
Child Welfare on 10 April 2006 in Keimoes
to determine whether "C
" is indeed a child in need of care. Magistrate Frans Erasmus,
at an informal inquiry, basically
approved the Form 4 procedure
adopted by the police and social worker (Ms Coetzee) and made an
interim order that "C "
remain in the care of her
grandparents pending a formal inquiry which was instituted before
another magistrate, Mr Van Zyl.
In an unfortunate turn
of events, which should not only be avoided at all cost but also
deprecated when very young children are
involved, the inquiry was
postponed on numerous occasions due to the absence of the respondent
or a witness for one of the parties
or one required to be called by
the Commissioner or as a result of the absence or the termination of
the mandate of a legal practitioner.
The matter was only concluded
on 26 February 2008 when the child was two years and one month old
and had stayed with the applicants
uninterruptedly. This delay has
serious implications and consequences for the parties and "C "
because the essence
of the Commissioner’s order, dealt with below,
was to reverse the interim order of Magistrate Erasmus which had
been in existence
from 10 April 2006 to 26 February 2008 (one year 8
months).
The papers show that
the Commissioner did not give reasons for the following final order
that he made:
“
(a) Custin word geplaas in
die sorg van Mnr Stoffels.
(b) Mnr Stoffels moet die
geleentheid gebied word om natuurlike kontak met "C " te hê
met tussenkoms van die plaaslike
Maatskaplike werker. Die Stoffels
egpaar en die Jonker egpaar word beveel om die band te bewerkstellig.
(c) Die hof gelas dat Mnr
Stoffels en die Jonker egpaar enige redelike opdrag van die
Maatskaplike werker/werkster om bogenoemde
te bewerkstellig uitvoer.
(d) Die plasing moet gefinaliseer
wees voor of op einde Augustus 2008.”
(The
numbering is mine).
It is this order in
para 12 (above) which gave rise to the current application. On 30
August 2008 Olivier J granted the applicants
an interim interdict
which suspended the operation of the Commissioner’s order in
respect of the handing over of "C "
to respondent the
following day (31 August 2008) pending the determination of the
custody issue by this Court. The integration
process ordered by the
Commissioner was thankfully left undisturbed.
On 07 November 2008
Majiedt J ordered by consent that each party appoints its own
psychologist to oversee and facilitate the integration
process
ordered by the Commissioner and to compile their respective reports
by not later than 30 January 2009 (after "C
" shall have
turned 3 years). Before I deal with these reports regard must be
had to Dr J D Stemmet’s report dated 28
July 2008 which forms
Annexure “JHJ1” to the application and precedes the order
granted by Majiedt J. The more relevant
portion reads:
“
EVALUERING:
Die Jonker egpaar
: Hulle
is `n hegte gesin wat gesonde beginsels handhaaf. Die oupa het `n
goeie inkomste, hulle woon op `n plasie (Keimoes) en
besit hulle eie
huis. Meneer Jonker kom emosioneel stabiel voor en dit is duidelik
ook uit die navraag dat hy sy beginsels uitleef.
Sy kinders is
blykbaar almal gelukkig en kom graag by hulle ouers kuier.
Ouma is permanent by die huis en
sy kan gevolglik goed omsien na die dogtertjie ("C ") se
daaglikse behoeftes. Op die
oomblik raak sy effens emotioneel
wanneer sy aan die moontlikheid dink dat hulle klein "C "
kan “verloor.” Sy is
egter stabiel en nie een van die grootouers
ly aan depressie nie of het sover ek kon vastel, swak emosionele
balans nie.
Die dogter op wie se mediese
fonds "C " is, werk by die Staatshospitaal. Sy het `n
gesonde huwelik en self is sy baie
selfstandig, volwasse en
verantwoordelik.
"C " is baie kalm en
weetgierig. Sy hou van prentjies teken en is nie teruggetrokke nie.
Dit is duidelik uit haar verhouding
met ouma, oupa en tannie, dat sy
`n gelukkige klein meisie is. Sy is elke keer mooi aangetrek en is
baie gehoorsaam.
SAMEVATTING:
Samevattend kan ek beweer dat die
jonker gesin in "C " se emosionele, fisiese en geestelike
behoeftes kan voorsien.
Ek dink dat dit ook vir haar `n
negatiewe emosionele ervaring gaan wees indien sy nou hierdie
omgewing en geliefdes moet verlaat.
Verder is dit belangrik om te
meld dat sy bedags by ouma kan bly wat goed na haar omsien en waar sy
baie veilig voel.
Selfs op haar ouderdom kan dit `n
emosioneel-negatiewe ervaring wees om na meer as twee jaar van die
“ouers” wat sy as haar
ouers leer ken het, weggeneem te word.”
The integration
reports which Majiedt J ordered to be compiled serve a specific
purpose: to seek to establish whether the integration
process was a
success or not:
15.1 Dr Stemmet was
once more appointed by the applicants. She reckons that the process
was successful mainly due to the full co-operation
of the applicants
who made several trips to Paarl at great expense to afford the
respondent ample access and natural contact.
Her latest report is
dated 24 January 2009.
15.2 Ms Mandi Bouwer
is a guidance and counselling psychologist. She brought out her
report on 28 January 2009 on behalf of the
respondent. She also
maintains that the integration process ran smoothly and goes on to
say:
“Dit het geblyk dat alle
rolspellende volwassenes hul bes gedoen het om hul eie emosionele
stand sekondêr te stel ter wille
van die dogtertjie se geluk.
Van beide partye is daar opofferings en groot finansiële
uitgawes aangegaan wat groot waardering
en op positiewe ingestelheid
toon.
Die verhouding tussen die
volwassenes was respekvol en konsiderend bv. telkens moes die
besoektye aangepas word om by die vervoerreëlings
aan te pas.
Elke minuut tydens die besoeke was kosbaar en met die verskuiwings
van tye het almal positief ingeval.
"C " was sprankelend,
spontaan en vriendelik met mnr Stoffels. Sy het vanaf die eerste
besoek gemaklik by hulle ingeskakel.
Met die eerste besoek in die
Paarl het sy sonder twyfel by haar pa se motor ingeklim – op sy
skoot gesit en saam met hom gery.
Die skeiding van haar grootouers
was spontaan. Sy het nie eens verbal gevra of haar grootouers ook na
dieselfde bestemming gaan
nie.”
Ms Bouwer recommends:
“
Aangesien die gesinsadvokaat
se ondersoek nie voltooi is nie word aanbeveel dat "C "
alleen vir drie weke in die Kaap
by haar vader tuis gaan tot die
verslag uitgereik is om die konstante en realiteit vir "C "
vas te maak van verskuiwing.
Dit word aanbeveel dat van haar
grootouers naby moet wees in die tyd om oorgang te vergemaklik. Ek
sal die gesin in die tyd monitor
en opvolg om emosionele stabiliteit
en veiligheid te help verseker. dit word aanbeveel dat die terapeut
sal opvolg, selfs `n voorgestelde
jaar tydperk na die intergrasie.”
I am impressed by the
objectivity and professionalism of these psychologists. Their inputs
and involvement in facilitating the
integration process have been
extremely helpful to the respective families, the child and the Court
to come to a well informed
and reasoned decision.
It should be mentioned
that the respondent has since married and a child was born to the
couple during 2008/2009. This brings
in a different dimension to
contend with. It seems that the initial impression of the
psychologists on both sides of the new
Mrs Stoffels is reasonably
favourable. However, it is early days yet. Not much information is
available concerning her except
that she is a clerk with the South
African Police Services. It is unclear what part respondent’s
daughter from his first marriage
plays in his life. It is not
stated who will care for "C " when the Stoffels are at
work.
Commissioner Van Zyl’s
intervention is useful to the extent that it brought about the
integration process, and "C "’s
bonding with her father.
Other than that the stand-alone order is not of much use
unaccompanied by a judgment or the reasons
for the order which would
have related why it was made or how it was arrived at.
The applicants, the
grandparents of "C ", have brought "C " up as
their own child to this point (she is now
3 years and 8 months)
without any demur from any quarter. At 53 and 55 years of age they
are relatively young and homebound.
Their children are grown up and
are able to care for themselves and support their parents with "C
". The Jonkers
own the seven-roomed house in which they live.
Prospects of an environmental change are unlikely. The Family
Advocate, though
his report was comprehensive and helpful,
misconstrued the circumstances under which "C " was
removed from Paarl.
I can conceive of no cogent reasons why the
child should be uprooted from the secure, familiar and warm
environment she finds
herself in. It is not only her grandparents
that "C " is attached to emotionally but also her aunts
(one on whose
medical aid scheme she has been registered), her
uncles and little friends.
The applicants stated
that the respondent has not maintained "C " since she has
stayed with them on 30 March 2006.
Respondents counters the
allegation by saying that the applicants have rebuffed his offer of
maintenance. Respondent has produced
proof that he has been banking
the money meant for "C "’s maintenance which amounts to
several thousand rand (over
R3000-00) by now. He can now pay over
the money in a show of good faith and not adopt a cynical attitude
of “I will maintain
my child only if she is with me.” The
upshot is, as of now he has not maintained his daughter. The papers
show that "C
" receives a Government grant which, I
understand, was initiated
mero motu
by the Commissioner.
This does not say much for the respondent’s lofty assertions which
he has not walked.
I am accordingly
satisfied that it would be in the best interest of "C "
that her custody and guardianship be awarded
to the applicants
subject to respondent’s right of reasonable access to her. See:
S28(2) of the Constitution of the Republic
of South Africa, 108 of
1996. The factors stipulated in
s7
of the
Children’s Act, 38 of
2005
, have been taken into account. In
Du Toit v Minister of
Welfare & Population Development
2003(2) SA 198 (CC) the
Constitutional Court had this to say on the best interest of the
child in para 20.
“
Paramountcy of the child's
best interests
[20] The applicants submitted that
the impugned provisions violate the 'best interests' principle
protected by s 28(2) of the Constitution.
Section 28(2) of the
Constitution states that:
'A child's best interests are of
paramount importance in every matter concerning the child.'
In Minister of
Welfare and Population Development v Fitzpatrick and Others
1
Goldstone J observed that:
'Section 28(2)
requires that a child's best interests have paramount importance in
every matter concerning the child. The plain
meaning of the words
clearly indicates that the reach of s 28(2) cannot be limited to the
rights enumerated in s 28(1) and s 28(2)
must be interpreted to
extend beyond those provisions. It creates a right that is
independent of those specified in s 28(1). This
interpretation is
consistent with the manner in which s 28(2) was applied by this Court
in Fraser v Naude and Others.'
2
Both
international law and the domestic law of many countries have
affirmed the paramountcy of 'the best interests of the child'.
3
Similarly, s 18(4)(c) of the Child Care Act, which sets the best
interests standard for the adoption of a child, provides that:
'A children's court to which
application for an order of adoption is made . . . shall not grant
the application unless it is satisfied
-
. . .
(c) that the proposed adoption will
serve the interests and conduce to the welfare of the child . . . .'
”
[21] In matters of this
nature there is no winner or loser. The dispute was bona fide.
There shall be no order as to costs.
In the premises I
make the following order
:
1. Custody and
guardianship of the minor child "C S", born on 23 January
2006, is awarded to the applicants, Mrs Jacoba
Hendrina Jonkers and
Hans Johannes Jacobus Albertus Jonkers.
2. The applicants are
awarded full parental responsibilities and rights as contemplated in
s18(2)(a) – (d) of the
Children’s Act, 38 of 2005
, in respect of
the child, which incorporate to care for the child, to maintain
contact with her, to contribute to her maintenance
and generally to
act as her guardians.
3. The permanent
residency of the child is awarded to the applicants.
4. The respondent, Mr
Francois Christiaan Stoffels, as father of the child has the right of
reasonable access to the child the terms
of which access must be
drawn up by counsel with the aid of the Family Advocate, Mr A H Nel;
the psychologists Dr J D Stemmet
(representing the applicants) and
Ms Mandi Bouwer, representing the respondent.
5. If agreement
concerning the terms of the respondent’s access rights is reached
an order by consent should be obtained in the
Chambers of the Judge
President at 09h00 on Tuesday 20 October 2009 or otherwise be argued
in court on the very stipulated date
and time.
6. There shall be no
order as to costs.
________________________
F
DIALE KGOMO
JUDGE
PRESIDENT
NORTHERN
CAPE DIVISION
For Applicant
: Adv J J Schreuder
On Behalf
of:
ELLIOTT, MARIS, WILMANS & HAY
For the First
Respondent: Adv. J S ANDERSSEN
On behalf of:
VAN
DE WALL & PARTNERS
1
2000(3) SA 422 (CC) (2000(7) BCLR 713 at para [17]).
2
1999(1)
SA 1 (CC)
(1998 (11) BCLR 1357)
at para [9].
3
Examples
of African Countries which incorporate children’s clauses in their
constitutions include Namibia (art 15 of the Constitution
of the
Republic of Namibia); and Uganda (s34 of the Constitution of the
Republic of Uganda). The paramountcy of the best interests
of
children is confirmed in many international conventions on the
Rights of the child, 1989. The convention was adopted by the
United
Nations General Assembly on 20 November 1989 and entered into force
on 2 September 1990. See also, art 4 of the African
Charter on the
Rights and Welfare of the Child, 1990.