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[2008] ZAWCHC 27
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F.J v E.J (A101/2008) [2008] ZAWCHC 27; 2008 (6) SA 30 (C) (20 May 2008)
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Certain
personal/private details of parties or witnesses have been
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Reportable
IN THE HIGH COURT OF SOUTH AFRICA
[CAPE OF GOOD HOPE PROVINCIAL DIVISION]
CASE NO: A101/2008
In the matter between:
F J Appellant
and
E J Respondent
JUDGMENT DELIVERED ON 20 MAY 2008
___________________________________________________________
HJ
ERASMUS, J
Introduction
[1] This is an appeal against the dismissal by Motala J
of an application which was on 15 January 2008 brought as a matter of
urgency
and in which the following relief was sought:
Condoning the Applicant’s failure to comply with the Rules of
the above Honourable Court in relation to forms, time periods
and
service, and permitting this matter to be heard urgently in
accordance with the provisions of Uniform Rule 6(12(a).
That a rule
nisi
do issue calling upon the Respondent to
show cause on the 31
st
January 2008 why: --
The minor child, J, should not be enrolled at St George’s
Grammar School (Grade 6) with immediate effect;
The Respondent should not be prohibited from having the minor child
assessed by any expert without a Court Order allowing her
to do so;
The Respondent should not be ordered to pay the costs relating to
Part A of this application.
1
That the relief referred to in paragraph 2.1 above operate forthwith
as an interim order, pending the outcome of this application.
[2] In paragraph 2.1 of the Notice of Motion, the
applicant seeks in effect a final order for the enrolment of the
child at the
St George’s Grammar School. In the founding
affidavit, the purpose of the application and the relief sought are
set out in
significantly different terms. In paragraph 6 of the
founding affidavit, deposed to by the applicant, it is stated:
The
purpose of this application is to apply to this Honourable Court for
an order:
6.1 That J be enrolled at St George’s Grammar School, Cape Town
in Grade 6 with immediate effect and that he remains there
until the
Respondent has complied with the provisions of the Children’s
Act, Act No 38 of 2005 (Children’s Act) and/or
until this
Honourable Court orders otherwise with specific reference to the
provisions of the Children’s Act.
[3] At the hearing of the appeal, counsel for the
appellant submitted that this Court should make an order along the
lines of the
order made by the Full Bench on appeal to it in
Simleit
v Cunliffe
2
:
an order that the child be sent back to St George’s Grammar
School at a specific, convenient date, and a mandatory order
on the
respondent directing her not to remove the child from the St George’s
Grammar School as long as the appellant pays
the school fees.
[4] On the afternoon of 15 January 2008 the Court by
agreement between the parties appointed Adv J McCurdie, a member of
the Cape
Bar, to represent the interests of the minor child. On 16
January 2008 Ms McCurdie’s report was made available to the
parties.
Annexed to her report was a report from a clinical
psychologist, Mr Bernard Altman. Prior to Ms McCurdie’s report
becoming
available, the respondent filed a brief answering affidavit;
the applicant did not file replying papers.
[5] The matter was heard in the afternoon of 16 January
2008. At the hearing, the evidence of Mr DG Bester, the principal of
the
St George’s Grammar School (Preparatory) was adduced on
behalf of the applicant. No other oral evidence was heard. After
hearing argument by Mr Pincus SC on behalf of the applicant, Mr
Olivier SC on behalf of the respondent, and Ms McCurdie as
curator
ad litem
on behalf of the child, Motala J
dismissed the application. On 7 February 2008 the learned Judge
furnished reasons for the dismissal
of the application.
The background
[6] The appellant and the respondent were previously
married to each other. The minor child was born from their marriage
relationship
on 10 October 1995. The marriage was dissolved on 6
October 2000. An Agreement of Settlement was incorporated in the
final order
of divorce. “Custody and control” of the
minor child is dealt with in paragraph 2 of the Agreement of
Settlement. In
terms of the clause, “custody and control”
of the child was awarded to the respondent subject to the appellant’s
rights of reasonable access. It was further provided that the
appellant should have the right, subject to certain conditions, to
decide which school the child should attend. The clause reads as
follows:
Custody and control of the minor child, F J J, shall be awarded to
the Defendant, subject to the Plaintiff’s right of reasonable
access. It is further recorded that the Plaintiff will have the right
deciding which school the minor child shall attend as well
as what
age the child shall start commence his schooling. If the Plaintiff in
any way should fail to pay the school fees in full,
this right shall
fall away and the Defendant will be entitled to nominate the school
which the child shall attend.
The clause is further dealt with in paragraphs [31] and
[32] below.
[7] The schooling of the child has been the subject of
much litigation. The current application and appeal are but part of
the torrent
of litigation between the parties. The circumstances
giving rise to the current application are set out in the following
paragraphs.
[8] On 5 October 2002 the respondent married Mr JM J. Mr
J is in the service of the South African Diplomatic Corps. During
2003
he took up the position of first secretary of the South African
Embassy in Libreville, Republic of Gabon. On 1 September 2004 an
order was made in the Transvaal Provincial Division authorising the
removal of the child to the Republic of Gabon. In Libreville,
the
child attended the American International School.
[9] During 2007 the respondent and her husband returned
to South Africa and settled in Cape Town. From July 2007 the child
was enrolled
at the St George’s Grammar School in Mowbray, Cape
Town. Mr Bester said in evidence that the child –
… fitted in very well into the school, academically he
performed extremely well, in fact at the end of the year he won the
prize for academic excellence.
[10] The respondent decided to enrol the child at the
Jan van Riebeeck Primary School as from the beginning of the first
term of
2008 which commenced on 14 January 2008.
[11] The
respondent in her answering affidavit set the reasons for the
enrolment of the child at Jan van Riebeeck out as follows:
Ek meld egter kortliks dat ek en my huidige eggenoot, in oorleg met
J, oorweging daaraan skenk
3
dat J sy hoërskoolloopbaan voortsit aan die Hoërskool Jan
van Riebeeck te Tuine, Kaapstad, Wes-Kaap. Ons is geadviseer
dat,
aangesien die Hoërskool Jan van Riebeeck ‘n Afrikaans
medium skool is, dit aangewese is dat J die laaste twee
jare van sy
laerskooljare meemaak by ‘n Afrikaans medium laerskool, omdat
dit die onderrigproses in sy hoërskooljare
sal vergemaklik. Die
Laerskool is aan beide my en my eggenoot bekend as ‘n
uitstekende skool, waar alle aspekte betreffende
die onderrig van
leerders, van goeie standaarde, dissipline en resultate spreek.
Ons het vooraf vir J geneem na die Laerskool Jan van Riebeeck, hom
in kontak gebring met die prinsipaal, sowel as a mede-leerder,
wat
ook vanaf ‘n Engels medium skool afkomstig is en ingeskryf was
by die Laerskool Jan van Riebeeck, ten einde vas te
stel watter
probleme, indien enige, J in die proses te wagte kan wees. Gedurende
gemelde bekendstelling het J ook gesien en ervaar
watter fasiliteite
by die Laerskool Jan van Riebeeck tot sy beskikking sal wees,
waarmee hy ingenome en tevrede was. Dit het
ook geblyk dat die
mede-leerder, waarna verwys is, geen noemenswaardige probleme
ondervind het met die oorgang vanaf ‘n
Engels medium to ‘n
Afrikaans medium laerskool nie. Aangesien J in ‘n
Afrikaanssprekende huishouding is, verwag ons
in elk geval nie dat
hy probleme sal ondervind nie.
Die hele kwessie rondom die plaas van J in die Laerskool Jan van
Riebeeck is dus volledig ondersoek, behoorlik oorweeg en het
ons, J
inkluis, tot die gevolgtrekking gekom dat dit in sy beste belang is
dat die verskuiwing plaasvind met die aanvang van
die huidige
skooltermyn, synde ook die begin van ‘n nuwe skooljaar.
[12] Other considerations which also weighed with the
respondent were that the fees at the St George’s Grammar
School, which
is a private school, are considerably higher than those
at Jan van Riebeeck, which is a government school. Jan van Riebeeck
is
also geographically more convenient in that the school is close to
the home of the respondent; the St George’s Grammar School
is
several kilometres away in a different suburb.
[13] The respondent’s decision to enrol the child
at Jan van Riebeeck as from the first term of the new (2008) school
year
precipitated the appellant’s urgent application.
The judgment of the Court
a
quo
[14] In the reasons furnished for the dismissal of the
application, the Court
a quo
held:
The applicant failed to pay the school fees and thereby
forfeited the right, given to him in clause 2 of the Agreement of
Settlement,
to decide which school the child should attend.
The respondent’s failure to consult the applicant
before enrolling the child at Jan van Riebeeck did not, even if she
was
obliged to do so, invalidate her decision.
The applicant’s concerns that J is an English
speaking child whose educational progress, emotional and social well
being
would be deleteriously affected by being transferred to an
Afrikaans medium school were not borne out by the evidence, and were
dispelled by the unequivocal evidence of Mr Bester that he would not
be prejudiced at all, and that if he is ultimately to go
to an
Afrikaans medium high school, the sooner he did so the better.
There is no evidence to support the applicant’s
apprehensions; all indications are that the child will not be
prejudiced
by the proposed move.
The respondent discussed the proposed move with the child; she
took him to Jan van Riebeeck before the start of the current
academic year; the headmaster introduced him to an Afrikaans
speaking pupil who had previously attended an English medium school.
Moreover, J had already made friends in his grade at Jan van
Riebeeck and he was excited at the facilities which will be
available
to him there.
New matter on appeal
[15] On 4 April 2008 the respondent’s
attorneys addressed a letter to the appellant’s attorneys in
which reference is
made to a further (second) report by the
educational psychologist, Dr Eunice L van Deventer. Included in the
body of the letter
is an extract from the report, and annexed to the
latter are copies of a number of paragraphs in the respondent’s
answering
affidavit in the proceedings in Part B of the Notice of
Motion which were continued after judgment had been handed down in
regard
to Part A.
4
In the final paragraph of the letter, the respondent’s
attorneys informed the appellant’s attorneys that they have
been instructed to place the letter before the Court hearing the
appeal by filing a copy thereof in the record on appeal.
[16] Dr Eunice L van Deventer submitted a first report
dated 26 January 2007 at the instance of the office of the Family
Advocate
in Pretoria. Her first report is attached to the founding
affidavit – the appellant refers to it as “this very
important
report” – and forms part of the papers of the
record on appeal. Reference is made to this report elsewhere in this
judgment. The second report was obtained at the instance of the
appellant and is dated 31 March 2008.
[17] In the letter, the following passages are quoted
from Dr van Deventer’s second report:
With the information available it seems that the
size of the two mentioned schools is very much the same. With the
information at
hand it seems whether there are more than enough
facilities and support at Laerskool Jan van Riebeeck to provide in
J
educational, emotional, social and developmental needs at present.
With the little information available from St Georges Grammar
School,
I cannot comment on their facilities.
…..
RECOMMENDATIONS
J
should remain in
Laerskool Jan van Riebeeck. He has special intellectual abilities and
comes from a mixed Afrikaans/English background.
He was also exposed
to other cultural challenges and succeeded. These experiences can
support him in his transitional phase. There
had been too many
changes during the past years, whether it is school placement or
physical residence. Another change towards the
middle of the school
year would create new challenges to J in an already difficult
situation. It can be argued that he will have
a better chance to
succeed if he is placed in an English medium school. This could very
well be the case. If he however experiences
that such a placement is
again an enforcement of his father’s will, without his mother’s
approval, it may not succeed.
His motivation and own sense of
responsibility will however determine whether he will be able to
succeed. This needs to be addressed
seriously ….
J
should remain in Grade
6. He is according [to] many reports well placed in his grade and
peer group. Even with special help, an
advancement to Grade 7 will
place unnecessary pressure and stress on him. There are many other
issues that need to be addressed.
[18] Counsel for the respondent submitted that this
Court can take cognisance of the second report. Counsel for the
appellant objected
to the second report being placed before this
Court, and said that it was improper to put it before the Court in
the way it had
been done.
[19] In
Van
Eeden v Van Eeden
5
,
after giving consideration to the provisions of section 22(a) of the
Supreme Court Act 59 of 1959, and the decisions of the Appellate
Division in
Goodrich
v Botha and Others
6
and
Weber-Stephen
Products Co v Alrite Engineering (Pty) Ltd and Others
7
,
Comrie J concluded
8
:
The Court exercising an appellate jurisdiction has
a discretion whether or not to allow the evidence to be re-opened. In
my respectful
opinion the matter can be adequately controlled by the
sparing exercise of such discretion. Furthermore, cases do arise from
time
to time which cry out for the reception of
post
-judgment
facts.
The approach of Comrie J was approved
by the Constitutional Court in
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
9
.
It was held that further evidence on appeal –
….. should only be admitted in exceptional circumstances. Such
evidence must be weighty, material and to be believe
d.
In addition, whether there is a reasonable explanation for its late
filing is an important factor. The existence of a substantial
dispute
of fact in relation to it will militate against its being admitted
[20] As the upper guardian of minors,
this Court is empowered and under a duty to consider and evaluate all
relevant facts placed
before it with a view to deciding the issue
which is of paramount importance: the best interests of the child.
10
In
Terblanche v
Terblanche
11
it was stated that
when a Court sits as upper guardian in a custody matter –
….. it has extremely wide powers in establishing what is in
the best interests of minor or dependent children. It is not
bound by
procedural strictures or by the limitations of the evidence presented
or contentions advanced by the respective parties.
It may in fact
have recourse to any source of information, of whatever nature, which
may be able to assist it in resolving custody
and related disputes.
In
P
and Another v P and Another
12
Hurt J stated that the Court does not look at sets of circumstances
in isolation:
I am bound, in considering what is in the best interests of G, to
take everything into account, which has happened in the past,
even
after the close of pleadings and in fact right up to today.
Furthermore, I am bound to take into account the possibility of
what
might happen in the future if I make any specific order.
In
AD and DD v DW and Others
13
the Constitutional
Court endorsed the view of the minority in the Supreme Court of
Appeal that the interests of minors should not
be “held to
ransom for the sake of legal niceties”
14
and held that in the case before it, the best interests of the child
“should not be mechanically sacrificed on the altar
of
jurisdictional formalism”.
15
[21] In the present matter, the
circumstances are certainly exceptional. The second report is by the
same expert whose first report,
the appellant annexed to his founding
papers in support of his application. The appellant does not wish
this Court to take cognisance
of the further report which the expert
produced at his instance after the judgment in the Court
a
quo
had been handed
down and after the appeal had been noted. There is no dispute between
the parties that the appellant elicited the
second report and that
the extracts placed before the Court are correct. The recommendations
in the second report are material
in so far as the stance adopted by
the expert in her first report is concerned in the light of
post
-judgment
facts. The manner in which extracts from the second report were
placed before the Court is not satisfactory, and it would
have been
preferable if the full report had been placed before the Court. The
respondent’s attorneys did alert the appellant’s
attorneys to the fact that the extracts from the second report would
be placed before the Court hearing the appeal. The question,
however,
arises whether it was not in any event and from the outset incumbent
upon the appellant’s legal representatives
to place the full
second report before the Court?
The issues on appeal
[22] The issues on appeal will be considered under three
broad heads:
Alleged errors of fact in the judgment of the Court
a
quo
.
The provisions of the Children’s Act 38 of 2005
regarding parental responsibilities and rights
The best interests of the child.
Alleged errors of fact
[23] In argument before us, counsel for the appellant
submitted that the learned Judge in the Court
a
quo
made two fundamental errors of fact. The
first is the Judge’s finding that the appellant created the
“misleading impression”
that the child is English
speaking and whose educational progress, emotional and social well
being would be deleteriously affected
by being transferred to an
Afrikaans medium school. The applicant said in the founding
affidavit:
I wish to confirm that J has never attended an Afrikaans school
before. I am of the opinion, taking J previous academic performance
into consideration, that not only the removal but also the change
from English to Afrikaans schools will impact very negatively
on J
academic performance as well as his social and emotional well being.
The statement is misleading, though I accept not
deliberately so, in that it does not reveal, as Mr Bester did in his
evidence in
response to a question as to what language the child
speaks, that --
J is fully bilingual. He speaks English at our school and Afrikaans
at home.
The respondent’s statement in her answering
affidavit that the child is in an “Afrikaanssprekende
huishouding”
was not disputed at the hearing.
[24] The second factual error in the judgment, the
appellant says, is the statement that the appellant’s reliance
of clause
2 of the Agreement of Settlement was “misplaced, if
not dishonest”. The submission was made that the appellant did
not rely on the clause in his application. The appellant cites the
full text of the clause in his founding affidavit, he refers
to
remarks made by Boshielo J apropos the clause in earlier litigation
between the parties, he refers to the fact that prior to
November
2006 the respondent had indicated to him that he had not complied
with the provisions of the clause, an allegation which
he said he
denied at the time and indeed still denies. He adds that he “decided
not to force this issue by way of litigation”.
In my view,
clause 2 of the Agreement of Settlement was part and parcel of the
case he made out in the founding affidavit.
Parental responsibilities and rights
[25] Subsequent to the parties
signing the Agreement of Settlement, and on 1 July 2007, certain
provisions of the Children’s
Act 38 of 2005 (“the Act”)
were implemented. Sections 6(5), 18, 20, 30 and 31, which deal with
parental responsibilities
and rights, are relevant to the present
matter. In these sections, the terms “parental power” and
“parental authority”
are replaced by the term “parental
responsibilities and rights” and the term “custody”
by “care”.
Section 1(2) of the Act provides that in
addition to the meaning assigned to the term “custody” in
any other law or
the common law, it must now be construed as
also
having the meaning of “care” as defined in section 1(1)
of the Act. That definition encompasses the topics covered
by the
traditional concept of custody, although it also includes matters
(for example, paragraphs (h) – (i) of the definition)
which
would seem to be the responsibility of all who have parental
responsibilities and rights, however limited these may be.
16
Section
6(5) provides:
A child, having regard to his or her age, maturity and stage of
development, and a person who has parental responsibilities and
rights in respect of that child, where appropriate, must be informed
of any action or decision taken in a matter concerning the
child
which significantly affects the child.
Section 18 deals with “parental responsibilities
and rights” and provides as follows:
A person may have either full or specific parental responsibilities
and rights in respect of a child.
The parental responsibilities and rights that a person may have in
respect of a child, include the responsibility and the right
–
to care for the child;
to maintain contact with the child; and
to act as guardian of the child; and
to contribute to the maintenance of the child.
Subject to sections (4) and (5), a parent or other person who acts
as guardian of a child must –
(a)….
(b)….
(c) give or refuse any consent required by law in respect of the
child, including –
(i) consent to the child’s marriage;
(ii) consent
to the child’s adoption;
(iii) consent to the child’s departure or removal from the
Republic;
(iv) consent to the child’s application for a passport; and
consent to the alienation or encumbrance of any immovable property
of the child.
(4) Whenever more than one person has guardianship of a child, each
one of them is competent, subject to section (5), any other
law or
any order of a competent court to the contrary, to exercise
independently and without the consultation of the other any
right or
responsibility arising from such guardianship.
(5) Unless a competent court orders otherwise, the consent of all the
persons that have guardianship of a child is necessary in
respect of
the matters set out in subsection 3(c).
Section 19 confers full parental responsibilities and
rights in respect of a child on the biological mother of the child.
Section
20 confers full parental responsibilities and rights in
respect of a child on the biological father of the child who was
married
to the child’s mother at the time of the child’s
conception or birth or any time in between.
Section 30, which deals with the co-exercise of parental
responsibilities and rights, provides as follows:
(1) More than one person may hold parental responsibilities and
rights in respect of the same child.
(2) When more than one person holds the same parental
responsibilities and rights and rights in respect of a child, each of
the
co-holders may act without the consent of the other co-holder or
holders when exercising those responsibilities and rights, except
where this Act, any other law or an order of court provides
otherwise.
(3) A co-holder of parental responsibilities and rights may not
surrender or transfer those responsibilities and rights to another
co-holder or any other person, but may by agreement with that other
co-holder or person allow the other co-holder or person to
exercise
any or all of those responsibilities and fights on his or her behalf.
(4) An agreement in terms of subsection (3) does not divest a
co-holder of his or her parental responsibilities and rights and
that
co-holder remains competent and able to exercise those
responsibilities and rights/
Section 31 deals with “major decisions involving
child” and provides as follows:
(1)(a) Before a person holding parental responsibilities and rights
in respect of a child takes any decision contemplated in paragraph
(b), that person must give due consideration to any views and wishes
expressed by the child, bearing in mind the child’s
age,
maturity and stage of development.
(b) A decision referred to in paragraph (a) is any decision –
…..
…..
…..
which is likely to significantly change, or have an adverse effect
on, the child’s living conditions, education, health,
personal
relations with a parent or family member or, generally, the child’s
well-being.
(2)(a) Before a person holding parental responsibilities and rights
in respect of a child takes any decision contemplated in paragraph
(b), that person must give due consideration to any views and wishes
expressed by any co-holder of parental responsibilities and
rights in
respect of the child.
A decision referred to in paragraph (a) is any decision which is
likely to change significantly, or to have any significant adverse
effect on, the co-holder’s exercise of parental
responsibilities and rights in respect of the child.
[26] In terms of sections 19 and 20 of the Act, the
appellant and the respondent both hold full parental responsibilities
and rights
in respect of the minor child: they are co-holders of
parental responsibilities and rights. As holders of parental
responsibilities
and rights, they have the responsibilities and
rights set out in section 18 of the Act. The section envisages that a
person may
have either full or specific parental responsibilities and
rights in respect of a child. Section 30(3) provides that a co-holder
of parental responsibilities and rights may by agreement with another
co-holder allow the other co-holder to exercise some or all
of the
parental responsibilities and rights on his or her behalf.
[27] Under section 30 of the Act,
holders of parental responsibilities and rights enjoy a large measure
of autonomy. In terms of
section 30(2), the appellant and respondent,
as co-holders of parental responsibilities and rights, may exercise
those responsibilities
and rights without each other’s consent
unless the Act, any other law or an order of court provides
otherwise. Section 31(2)
provides that a holder of parental
responsibilities and rights must give due consideration to the views
and wishes of a co-holder
of parental responsibilities and rights
before he or she takes any decision which is likely to change
significantly or to have
a significant adverse effect on the
co-holder’s exercise of parental responsibilities and rights
.
[28] It is not in dispute that the appellant did not pay
the school fees when the child attended the American International
School
in Libreville and the St George’s Grammar School in Cape
Town. Mr Bester said in evidence that the appellant visited the St
George’s Grammar School shortly after the child’s
enrolment there. He did not offer to pay the school fees for 2007,
and the respondent’s averment that the appellant ignored
accounts for fees which were faxed to him is not disputed. The
appellant did make a belated offer in a letter to Mr Bester dated 10
January 2008 to pay the school fees for 2008.
[29] The question which arises for decision in this
appeal is whether the respondent as holder of parental
responsibilities and
rights, in coming to a decision in regard to the
schooling of the minor child, was obliged to give due consideration
to the views
and wishes of the appellant as co-holder of parental
responsibilities and rights in respect of the child?
[30] The respondent’s
contention, which was upheld by the Court
a
quo
, is that t
he
appellant failed to pay the school fees and thereby forfeited the
right, given to him in clause 2 of the Agreement of Settlement,
to
decide which school the child should attend. The appellant contends
that whatever the meaning of clause 2 of the Agreement of
Settlement
there was, under the provisions of the Act, a legal obligation on the
respondent to have both consulted with the appellant
in regard to her
decision to move the child and furthermore to have advised the
appellant of her decision.
[31] By clause 2 of the Agreement of Settlement, the
custody of the child was awarded to the respondent. The custodian
parent generally
has the right to have the child with him or her, to
regulate its life and to decide all questions of education, training
and religious
upbringing.
17
In terms of clause 2 the parties agreed to vary the normal incidence
of the rights of the custodian parent by giving the non-custodian
parent (the appellant), subject to compliance with a condition, the
right to decide which school the child shall attend. By reason
of his
non-compliance with the condition, the appellant has forfeited that
right conferred on him. The right to decide all questions
of
education, including the right to decide which school the child shall
attend, accordingly reverted to the respondent as the
custodian
parent. As holder of custodial rights, the respondent was in terms of
section 30(2) of the Act entitled to act without
the consent of the
appellant.
[32] There was some debate before us as to the effect of
the partial implementation of the Act on the Agreement of Settlement,
in
particular whether or not the agreement is rendered nugatory by
reason of being in conflict with the spirit and policy underlying
the
Act. In my view, the principle that the incidents of parental
responsibilities and rights may be dealt with by the co-holders
thereof by way of agreement
inter se
,
and such an agreement being made an order of court upon the divorce
of the parties, is embedded within the Act.
18
In terms of section 30(3), a holder of parental responsibilities and
rights may by agreement with a co-holder allow the co-holder
to
exercise on his or her behalf any or all of those responsibilities
and rights. That would include the care (custody) element
of parental
responsibilities and rights. Such an agreement does not, in terms of
section 30(4), divest a co-holder of his or her
parental
responsibilities or rights. This is in line with the common law
principle that the award of custody to (for example) the
mother of a
child does not diminish the natural guardianship of the father. In
the words of Van den Heever JA in Edelstein v Edelstein
NO and
Others:
19
An order awarding the custody of a minor to the
mother merely suspends in the interests of the minor certain of the
incidents of
parental authority and does so for the rest
sine
diminutione patriae potestatis.
[33] The appellant further contends that it was, in
terms of section 31(2) of the Act, incumbent on the respondent,
before she took
the decision in regard to the child’s
schooling, to give due consideration to the views and wishes of the
appellant. In terms
of the sub-section, such consideration must be
given if the decision contemplated is one
which
is likely to change significantly,
or
to have a significant adverse effect, on the co-holder’s
exercise of parental responsibilities and rights
.
[34] In the founding papers, the
appellant’s attack on the respondent’s decision was
confined to the alleged adverse
effect the removal of the child to an
Afrikaans-medium school would have on the education of the child. No
facts were placed before
the Court to indicate in what way the change
of school would be likely to change significantly, or to have a
significant adverse
effect, on the appellant’s exercise of
parental responsibilities and rights
.
In view of the fact that the
right to
decide all questions of education, including the right to decide
which school the child shall attend, vests in the respondent
,
the decision to change the child’s school would have no effect
on the exercise by the appellant of his parental responsibilities
and
rights.
[35] If the appellant’s
contention is correct that the respondent was indeed obliged
to
give due consideration to the views and wishes of the appellant
before coming to her decision, she was in no way bound to give
effect
to the respondent’s views and wishes. Once she has given such
consideration, she may act independently.
20
Moreover, failure to give consideration to the views and wishes of
the appellant, and failure to inform the appellant of her decision
in
terms of section 6(5) of the Act, do not in themselves render the
decision made by the respondent void or invalid – the
decision
is subject to review, the determining factor being whether or not the
decision is in the child’s best interests.
The interests of the child
[36] Section 9 of the Act echoes
section 28(2)
of
the Constitution and provides as follows:
In all matters concerning the care, protection
and well-being of a child the standard that the child’s best
interest is of
paramount importance, must be applied
.
Section
28(2) of the Constitution provides:
A child’s best interests are of paramount importance in every
matter concerning the child.
The Constitutional Court has held
that section 28(2) extends beyond and creates a right independent of
the other rights listed in
section 28(1).
21
In
Laerskool
Middelburg en ‘n Ander v Departementshoof, Mpumalanga
Department van Onderwys en Andere
22
Bertelsmann J stressed that section 28(2) –
….. inderdaad die fundamentele reg van elke kind vestig om in
die opweging van strydende partye se botsende belange –
en dus
ook die strydende partye se aanspr
ake op
fundamentele regte en die handhawing daarvan – in die eerste
gelid te staan.
It is the interests of the child that are paramount in
all matters concerning the child and the interests of the child take
preference
over the interests of the parents.
[37] The principal concern raised by the appellant is
that the enrolment of the child in an Afrikaans-medium school would
have a
detrimental effect on his education progress, emotional and
social well being and may not be in the child’s long term
interests.
These concerns were not shared by Mr Bester who, it will
be recalled, was called at the instance of the appellant to give
viva
voce
evidence at the hearing. In this regard,
the following extract from the cross-examination of Mr Bester is
significant:
Mr Olivier
: So in other words if that’s the motivation
for Mrs J to consider putting him in Jan van Riebeeck Primary School
because
he will be taught in Afrikaans, which is preparing him for
high school in Afrikaans you can’t criticise that?
Mr Bester
: Not at all.
I
have already adverted to the evidence that the child is fully
bilingual and that he finds himself in an Afrikaans speaking
household.
[38] From the respondent’s answering affidavit
(the relevant paragraphs are cited above in paragraph [11]) it is
apparent
that the decision to move the child to Jan van Riebeeck
Primary School was prompted by consideration of the long term
interests
of the child. Of considerable importance, in my view, is
the fact that the child is in an Afrikaans speaking household and
that
the Jan van Riebeeck schools are situated close to the home of
the respondent. As to the standing of the Jan van Riebeeck schools,
there is the evidence of Mr Bester that “from reputation they
are outstanding schools”.
[39] Though
this appeal is concerned with the placing of the child at a
particular school, the interests of the child must be considered
within the wider context of an objective regard of “all
relevant factors”.
23
Reference was made above to the spate of litigation between the
parties. The question arises whether all that is in the best
interests
of the minor child. I am reminded of the words of Davidson
J in Ressel v Ressel:
24
I
would like to say, in conclusion, that it is an undesirable thing for
so much litigation to proceed over the head of a boy of
this age of
eight years
[in casu, a boy of twelve]
who cannot fail to be
aware of it and be influenced in some way by what is happening
between his parents in Court, and I think
the parties would be very
well advised to show some reasonableness in their dealings with each
other and have regard to the interests
of the child as being
paramount and not the interests of themselves.
[40] Within the context of the endless litigation
between his parents, the child has through the years been assessed by
a number
of professionals. Initially, the assessments were concerned
with learning problems which he seemed to have experienced, but by
January 2007 a situation had been reached which caused Dr Eunice van
Deventer to observe in her first report dated 26 January 2007:
J was met die eerste kennismaking op 23/01/2007 baie negatief en
emosioneel oor die feit dat hy weer geëvalueer moes word.
In sy
eie woorde: “I feel very mad, angry, cross when I get test
(sic)
like this because I am
not
a lab rat that has to
be tested my whole life!!!”. Dit is op rekord dat hy reeds deur
‘n groot aantal professionele
persone met die verloop van tyd
geëvalueer is. Dit het tans ‘n baie negatiewe uitwerking
op hom.
At the end of her report, Dr Van Deventer recommends:
25
Geen
verdere evaluering moet met hierdie kind gedoen word nie, behalwe in
die geval waar omstandigede dit ernstig noodsaak en albei
ouers
daartoe toestem.
[41] Ms
McCurdie in her submissions to this Court stated that should an order
be granted in the appellant’s favour –
[t]he
potential harm to him [the child] being required to return to St
George’s and cope with a further change,
at the instance of
the Appellant,
should not be underestimated.
This view is
underscored by Dr Van Deventer in her second report where she says
the following in regard to an enforced return of
the child to St
George’s Grammar School:
If
he however experiences that such a placement is again an enforcement
of his father’s will, without his mother’s approval,
it
may not succeed.
[42] In her second report, Dr van Deventer’s
unequivocal recommendation is that “J should remain in Jan van
Riebeeck”.
[43] In
my view, it is in the best interests of the child that his schooling
at Jan van Riebeeck should not be interrupted by an
order to enrol
him at St George’s Grammar School in grade 6, nor should he be
the subject of a further “full, thorough
and proper
investigation”.
26
The time has come for the child to be allowed to settle down without
further litigation, assessment and investigation.
[44] The Court is indebted to Ms McCurdie who
represented the child in the Court
a quo
and before this Court. Her reports and submissions have been very
helpful.
[45] I would make the following order:
The appeal is dismissed with costs, such costs to
include the costs of the
curator ad litem
.
HJ ERASMUS, J
I agree and it is so
ordered
CLEAVER, J
I agree
YEKISO,
J
1
The Notice of Motion also contained
a Part B in which different relief was sought which was not pursued
at the hearing before
Motala J.
2
1940 TPD 67
at 83.
3
Mr Bester said in evidence that the respondent told
him that for various reasons “her plans were for him [the
child] to
attend Jan van Riebeeck High”. Counsel’s
effort to extract some fundamental contradiction between the
respondent’s
answering affidavit and what Mr Bester said the
respondent told him, was not successful.
4
See above footnote 1.
5
1999 (2) SA 448
(C) at 450I – 453C.
6
1954 (2) SA 540
(A) at 545G – 546C.
7
[1992] ZASCA 2
;
1992 (2) SA 489
(A) at 507B – G.
8
At 453A.
9
[2004] ZACC 20
;
2005 (2) SA 359
(CC) at 388F—389B (paragraphs
[42] and [43]).
10
De Gree and Another v Webb and Others (Centre for
Child Law as Amicus Curiae)
2007 (5) SA 184
(SCA) at 200E (par
[32]); see also at 201B (par [36]). See further below paragraph
[36].
11
1992 (1) SA 501
(W) at 504C.
12
2002 (6) SA 105
(N) at 110C—D.
13
[2007] ZACC 27
;
2008 (4) BCLR 359
(CC) at 370A (par [30]).
14
De Gree and Another v Webb and Others (Centre for Child Law as
Amicus Curiae)
2007 (5) SA 184
(SCA) at 220I (par [99]).
15
AD and DD v DW and Others
[2007] ZACC 27
;
2008 (4) BCLR 359
(CC) at 370A (par [30]).
16
Wille’s Principles of
South African Law
(9
th
ed by Francois du Bois
et al
)
350.
17
Mitchell v Mitchell
1904 TS 128
at 130;
Calitz v
Calitz
1939 AD 56
at 63;
Simleit v Cunliffe
1940 TPD 67
at 75
in fine
– 76;
Van Oudenhove v Gruber
1981
(4) SA 857
(A) at 867F—G.
18
Section 23 of the Act which contains express
provisions in this regard has not as yet implemented.
19
1952 (3) SA 1
(AD) at 10C. See also
Sumleit
v Cunliff
1940 TPD 67
at 75—77.
20
Davel and Skelton
Commentary on the Children’s
Act
3—30.
21
Minister of Welfare and Population Development v
Fitzpatrick
2003 (3) SA 422
(CC) at 428C—D (par [18]). In
B v M
2006 (9) BCLR 1034
(W) at 1067B (par [141]) it is said
that the “best interests” principle provides “a
framework for addressing
the entire range of major issues affecting
children”.
22
2003 (4) SA 160
(T) at 178C—D.
23
Segal v Segal
1971 (4) SA 317
(C) at 323B.
24
1976 (1) SA 289
(W) at 294A.
25
In her report the recommendation is emphasised by
being printed in capital letters.
26
The quote is from the written heads of appellant’s
counsel.