Mphatsoe v Mohlala (761/2007) [2008] ZAFSHC 26 (15 May 2008)

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[2008] ZAFSHC 26
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Mphatsoe v Mohlala (761/2007) [2008] ZAFSHC 26 (15 May 2008)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case
No.: 761/2007
In the case between:
SEANE
MARIA MPHATSOE
Applicant
and
ABEL
MAREME MOHLALA
Respondent
_______________________________________________________
JUDGEMENT:
MOCUMIE, J
_______________________________________________________
HEARD
ON:
24 APRIL 2008
_______________________________________________________
DELIVERED
ON:
15 MAY 2008
_______________________________________________________
[1] The applicant
approached this Court on 22 March 2007 for an order in the following
terms:
“
2. That
a Rule Nisi is hereby issued, calling upon the Respondent to show
reasons, if any, on or before
22
MARCH
2007 why the
following order should not be made final:
2.1 That
the Respondent be ordered to return the minor child
Mologadi
Esther Mphatsoe
to
the Applicant with immediate effect,
alternatively,
and in the event of the child not being with the Respondent that the
Respondent be ordered to indicate to the Sheriff where the
child may
be found;
2.2 That the Sheriff of the above
Honourable Court be ordered and authorized, in the event of the
Respondent failing to comply with
the order in paragraph 2.1 above,
to remove
Mologadi
Esther Mphatsoe
from the Respondent’s place of residence and/or any other place
where she may be found, and to return said child to the Applicant
with immediate effect;
2.3 That the Respondent be
interdicted from removing
Mologadi
Esther Mphatsoe
from the Applicant’s custody, whether it be done personally or
with the assistance of any other person;
2.4 That
the Respondent be ordered to pay the costs of this application;
3. That
the orders in paragraph 2.1, 2.2 and 2.3 serve as an interim
interdict with immediate effect;…”
[2] On 22 February 2007
an order was granted which reads:
“
2. A Rule nisi is hereby
issued, calling upon the respondent to show reasons, if any, no or
before 22 March 2007 why the following
orders should not be made
final:
that the respondent be ordered
to return the minor child
Mologadi
Esther Mphatsoe
to the applicant with immediate effect, alternatively, and in the
event of the child not being with the respondent that the
respondent to be ordered to indicate to the Sheriff where the
child may be found.
that the Sheriff of the above
Honourable Court be ordered and authorized, in the event of the
respondent failing to comply with
the order in paragraph 2.1
above, to remove Mologadi Esther Mphatsoe from the respondent’s
place of residence and/or any
other place where she may be found
and to return said child to the applicant with immediate effect.
that the respondent be
interdicted from removing Mologadi Esther Mphatsoe from the
applicant’s custody whether it be done
personally or with the
assistance of any other person.
that the respondent be ordered
to pay the costs of this application.
that the orders in paragraph 2.1,
2.2 and 2.3 serve as an interim interdict with immediate effect.
A copy of this order must be
served on the respondent.”
[3] On 24 April 2008
when this matter came before me,I had to consider whether to confirm
the
rule
nisi
or discharge it.
[4] The application has
a long and chequered history. The applicant and respondent were in
a love relationship since 1994. Two
children were born out of the
relationship Olebogeng Mphatsoe
(“
Olebogeng
”)
and Mologadi Esther Mphatsoe (“
Esther
”).
Olebogeng is the first born of the couple and was born on 21 April
1995. Whilst Esther was born on 6 April 1996. The couple
was never
married. They terminated their relationship in 1997.
[5] When the
relationship was terminated the children were approximately 2 years
(Olebogeng) and 1 year (Esther) respectively.
Whether by agreement
or not the respondent stayed with Olebogeng and applicant with
Esther up and including the date of the urgent
application in
February 2007.
[6] Around January 2007,
the respondent took Esther away without the consent of the applicant
either on request of Esther or at
his instance. This forced the
applicant to approach this Court on an urgent basis to seek the
order referred to above which order
granted her rights to have
Esther in her care with the respondent’s normal rights of contact
as the applicant as the natural
mother was Esther’s only guardian.
By then the respondent had no parental rights over either of the
children even in terms of
the Natural Fathers of Children Born out
of Wedlock Act 86 of 1997. If he had any such rights, the rights
would have been granted
by an order of the High Court which order he
did not have.
[7] The two parties have
since 2007 been fighting each other over who should have
inter
alia
residential rights and full parental rights and responsibility of
the children in each parent’s care.
[8] The respondent
opposed this matter and filed an answering affidavit and a
counter-application. In his counter-application he
averred that the
applicant was staying in an abusive relationship with another man
and exposing Esther to such abuse. He alleged
that Esther also
intimated that she wanted to stay with him. He therefore wished to
have residential rights and full parental
responsibility in respect
of both children.
[9] The Family
Advocate’s intervention was sought by the order of this Court.
The Family Advocate sought assistance of a Family
Counselor to
investigate the matter especially with regard to Esther.
[10] The Family
Advocate’s report combined with the Family Counselor reflects the
two children’s opinion with regard to their
rights to residential
rights. In the report and during the interview conducted Olebogeng
indicated that he did not want to stay
with the applicant for
different reasons.
Inter
alia
is
the fact that he regarded the applicant’s home as poor. This in my
view is based on the materialistic way and manner in which
he
perceived his situation as the respondent gave him everything he
wanted. It is clear that he assumed that he will not get the
same
from the applicant. Esther and the applicant’s parental-child
relationship is described as good. The Counselor has indicated
that
the two have a strong bond. There is clearly no confusion with
regard to where she wanted to reside and with whom. The only
overrider was the condition she attached in staying with the
applicant.
[11] It is clear that
the Children’s Act, No. 38 of 2005 (“the Act”) has ushered in
a whole new era and approach to children’s
rights as opposed to
parents rights. The Act came into operation on 29 June 2007. It
puts both natural parents on an equal footing
with regard to the
care, contact and parental responsibilities of their children. It
puts more emphasis on the principle of the
“Best
interests of the child
”.
Quite interestingly, this resonates with section 28(2) of the
Constitution. In terms of the Act the opinion of the child concerned
must be taken into consideration when a decision is made as to where
and with whom (s)he should stay. This means that in this era,
one
parent cannot claim full responsibility of a child to the exclusion
of the other. Even if the child resides with one parent,
the other
parent must be consulted on decisions made about the child. So too
must the child.
[12] The facts of this
case are in my view not complicated. In deciding what is in the best
interest of these children, I have to
take in account all the
relevant factors including the child’s age, maturity, development
and the background I have sketched
above. I am thankful that the
Family Advocate investigated the matter to the extent that it did
and furnished me with very valuable
information and background. The
shortcoming of the report is obvious to the extent that it does not
address Olebogeng’s situation
completely. It does not begin to
address the relationship between Olebogeng and the applicant or even
make recommendations as to
how this situation can be addressed in
the future. What is clear from the report is this: The children
are comfortable where
they are currently. They say so themselves
except the allegations of violence at the applicant’s home and the
fact that they
which to be together.
[13] Esther has repeated
the allegations of abuse consistently ever since she was interviewed
in 2007 by the Family Counselor.
I cannot begin to minimize the
seriousness thereof. In the same vein, I cannot base my view on one
aspect of a whole conglomeration
of factors which I ought to take
into account in matters of this nature.
[14] I have given
consideration to what Esther has expressed (to stay with the
applicant on condition that she does not stay with
her current
boyfriend) in the context of :
[14.1] the accusations
leveled by each party against the other;
[14.2] what
the children said to the Family Counselor about where they want to
live and or reside and why;
[14.3] their
age;
[14.4] their
level of maturity;
[14.5] the
years each child has spent with each party;
[14.6] the
level at which the children have been put up and influenced to
behave in respect of each party, and
[14.7]
the perception of the children of what is their best interest.
[15] The notion of “Best
interests of the child” can never be interpreted and equated to
“what
the child demands (s)he gets”.
Even in this era of children’s rights it is common knowledge that
children lack the maturity to make decisions which affect their
status, their future and or best interests. They are easily
manipulated and influenced by a whole host of extraneous factors
including
what one parent offers and the other does not. To a large
extent this is influenced by the difference in standard of living
each
parent affords. The notion can best be described as “
what
parents and Courts consider to be in the child’s best interests
taking into account the child’s basic needs, well being
,protection, guidance , care love and security.”
[16] In my view it will
not be in these two children’s best interests to deprive them and
in the process both parents of a relationship
they all need. The
unsettled and uncertain situation which exists is not healthy for
the children i.e. excluding allegations of
violence which I strongly
believe can be dealt with as a separate matter by the Department of
Social Development in consultation
with the applicant and her
live-in-partner together with the child(ren) concerned. It will be
most appropriate and in the children’s
best interests if the
respondent participated voluntarily in the process.
[17] Having given due
consideration to all the factors placed before me, I am of the view
that the following order will be the most
appropriate:
ORDER
Main application
:
That the
rule
nisi
dated 22 February 2007 is confirmed;
That the applicant
retains permanent residency of the minor child Mologadi Esther
Mphatsoe;
That the respondent
is awarded contact rights in respect of the said minor child which
are defined as follows:
17.3.1 Contact on
alternative weekends, commencing at 17:00 on Friday until 17:00 on
Sunday, after which the respondent has to return
the said child to
the applicant’s residence;
17.3.2 Public
holidays to alternate between
applicant and the respondent;
17.3.3 Short school
holidays to alternate between the applicant and respondent and long
school holidays to be shared equally;
17.3.4 Contact
on Father’s Day from 09:00 to 17:00;and
17.3.5 Reasonable
telephonic contact.
Counter Claim
The adjudication of
the counter-claim is postponed
sine
die;
Matter is referred
to the Family Advocate for a thorough investigation and detailed
report on the respondent’s right to permanent
residency and
applicant’s contact rights, of the minor child Olebogeng
Mphatsoe;
Intervention of
specialists in the field of psychology and parent-and-child
relationship to be sought by the Family Advocate
during the
investigation referred to in para 15.5
supra.
[18] Costs of both
applications are reserved.
___________________

B. C. MOCUMIE, J
On
behalf of the applicant: Adv. J. G. Gilliland
Instructed
by:
Naudes
BLOEMFONTEIN
On
behalf of the respondent: Adv. P J J Zietsmann
Instructed
by:
Claude
Reid
BLOEMFONTEIN
/em