Townsend-Turner and Another v Morrow (524/2003, 6055/2003) [2003] ZAWCHC 53; [2004] 1 All SA 235 (C); 2004 (2) SA 32 (C) (8 October 2003)

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[2003] ZAWCHC 53
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Townsend-Turner and Another v Morrow (524/2003, 6055/2003) [2003] ZAWCHC 53; [2004] 1 All SA 235 (C); 2004 (2) SA 32 (C) (8 October 2003)

IN THE HIGH COURT
OF SOUTH AFRICA
(CAPE OF GOOD
HOPE PROVINCIAL DIVISION)
Case Numbers:
524/2003
6055/2003
In
the matter between:
MARLIESE
TOWNSEND-TURNER First Applicant
DEREK
ROYSTON TURNER Second Applicant
and
BRUCE
ANDREW MORROW Respondent
JUDGMENT
DELIVERED ON THIS 8
th
DAY OF OCTOBER 2003
KNOLL,
J:
There are two
applications before me. In the first application (case number
524/2003), the applicants seek an order that they be
granted the
right to defined access to the first applicant’s minor grandchild,
G. The orders sought by the applicants in the
first application
read as follows:-
“
2.1 That
applicants be granted reasonable access to the minor child, G... as
follows:
2.1.1 For one
week during each long school holiday and for three days during the
short school holidays, by timeous prior arrangement
with the
respondent.
2.1.2 For one
weekend each month commencing on a Friday at 18h00 until Sunday at
18h00;
2.1.3 For one
afternoon every second week on a week day;
2.1.4 Telephonic
access at all reasonable times.
2.2 That the
applicants shall be entitled to exercise the access set forth in
paragraph 2.1 above, in the event that G relocates
temporarily or
permanently to another jurisdiction, at such location.”
In
the second application (case number 6055/2003), the same applicants
seek an order declaring the same respondent to be in contempt
of an
order granted, on the 18
th
of June 2003 by this court, during the conduct of the first matter.
Furthermore, they request this court to impose upon the respondent
a
suitable fine or punishment.
The parties are
referred to herein as first and second applicant and respondent
respectively, and where it is necessary to distinguish
between the
two applications, this will be done.
These matters have
a long history and the papers filed are voluminous.
On
the 4
th
of June 1996, G was born of the marriage between the respondent and
first applicant’s daughter, Tanja. At his birth, Tanja was
diagnosed with cancer and she died during September 1999.
The second
applicant is a former husband of the first applicant, who currently
lives with the first applicant and is regarded by
G as his
grandfather. Tanja’s natural father died when the former was 3
years old.
It is common cause
that before Tanja’s death, both applicants enjoyed access to G
when the families visited each other. For some
months preceeding
Tanja’s death, respondent, Tanja and G resided with the applicants
at their home in Muizenberg. Immediately
after Tanja’s death
respondent and G moved back into their own home in Greenpoint.
In March 2000,
respondent formed a relationship with Louise Van Zyl. The couple
currently live together as a family unit and, it
is common cause,
that G is very close to Ms Van Zyl and regards her as his mother
although he is aware that his natural mother
has died.
It is common cause
that the relationship between the respondent and the first applicant
deteriorated after Tanja’s death. It
is also common cause that
respondent allowed the first applicant very limited contact with G
until approximately September / October
2000, whereafter respondent
allowed her only telephonic access and 1 hour per week of supervised
access. Later, at the first applicant’s
request, she was
permitted to spend one weekend in three with G on an overnight
basis.
The respondent has
business interests in Portugal and is required to go there for some
periods of time each year. In or about May
2001, respondent, Ms Van
Zyl and G resided in Portugal for some months although there is a
dispute as to the exact length of time.
During this period, it is
common cause that the first applicant visited Germany while the
Morrow family were visiting relatives
there and first applicant
spent approximately 6 days with the family and G.
After the family’s
return from Portugal in 2001, the applicants again enjoyed access to
G as they had prior to the Portugal visit.
From April 2002 to
October 2002, the family returned to Portugal. First applicant was
permitted telephonic access and she corresponded
with G. Again she
visited with the family in Hamburg, where they visited with
relatives, for nine days.
During
October 2002 there was an acrimonious telephone conversation between
Ms Van Zyl and the first applicant relating to allegations
by
respondent and Ms Van Zyl that first applicant had, in an
inappropriate manner, interfered with respondent’s staff at his
business. It is common cause that, after Tanja’s death, the
respondent took over the business built up by her. The parties
are
not in accord as to the details of the telephone conversation and
the reasons therefore, however, they are
ad
idem
that there were further difficulties in the relationship between
them to the extent that first applicant was not permitted further
contact with G.
On
the 28
th
of January 2003, the applicants launched the first application as a
matter of urgency. The matter was set down for the 6
th
of February 2003, on which date it was postponed by agreement, with
agreed dates as to the filing of opposing and replying affidavits,
and the family advocate was asked to report to the court on the
issue of the applicants’ access to G. During March 2003, the
respondent filed opposing papers seeking the dismissal of the
application, but in the event of the court being of the view that
there should be resumed contact between the applicants and G, that
it should be guided by the opinion of a clinical psychologist.
A
reply was filed by the applicants on the 18
th
of March 2003.
On
the 24
th
of March 2003 the matter was again postponed by agreement to the
30
th
of April 2003. On the 24
th
of March 2003, the family advocate, Adv Van der Westhuizen, filed a
memorandum recommending that the parties, especially the first
applicant, be evaluated by an independent clinical psychologist. Mr
Van der Westhuizen nominated,
inter
alia
,
Dr Rosa Bredenkamp and recorded in his memorandum that the parties
had agreed to co-operate with regard to this recommendation.
He
ended his recommendation by stating that there should be no interim
access granted.
On
the 30
th
of April 2003, the matter was again postponed by agreement to the
16
th
of May 2003.
On
the 13
th
of May 2003, a supplementary affidavit was filed by the first
applicant, alleging delaying tactics and un-cooperative behaviours
on the part of respondent which impacted,
inter
alia
,
on the ability of the family advocate to properly investigate the
matter. The supplementary affidavit further recorded correspondence
and attempts by her attorneys to persuade Dr Bredenkamp that the
matter was urgent and urging her to expedite her report.
It
is further recorded in the supplementary affidavit that on two
occasions, namely the 24
th
of March and the 16
th
of May 2003, the respondent had not been available for the hearing.
On the first occasion he was overseas, and on the second returning
from a business trip and was in Uppington. It was alleged by her
that the respondent, in an obstructionist manner, had canceled
appointments with the family advocate and had objected to G being
subjected to a meeting with all parties and the family advocate
as
also a meeting between Dr Bredenkamp and the first applicant.
She recorded, that
because of the delay in the matter, various requests had been made
by her attorneys for interim access. These
requests were initially
rejected outright by the respondent, but he later agreed to consider
them if advised by the professionals
that it would be in G’s best
interests.
On
the 16
th
of May 2003, the matter was again postponed by agreement, as
indicated due to the unavailability of the respondent. The hearing
was set as the 27
th
of August 2003. By agreement the question of interim access was set
down for hearing in the third division on the 30
th
of May 2003.
An
opposing affidavit to the applicants’ supplementary affidavit was
filed by the respondent on the 23
rd
of May 2003. Respondent opposed the grant of interim access and
indicated that, in any event, the family had planned to take a
holiday in New Zealand, respondent’s country of origin, to
celebrate his mother’s 70
th
and G’s 7
th
birthday. The family planned to return on the 10
th
of July 2003.
On
the 28
th
of May 2003 the first applicant filed a reply to respondents
supplementary opposing affidavit, seeking interim supervised access.
A
further memorandum by Mr Van der Westhuizen was filed, on the 28
th
of May 2003, indicating that he remained of the view that no order
for interim access should be made pending the finalisation of
Dr
Bredenkamp’s and his report and the hearing in this matter. He
expressed, however, that should the respondent, in his discretion,
allow contact between first applicant and G on an interim basis, he
would have no objection.
On
the 30
th
of May 2003, the matter with regard to interim access was postponed
by agreement to the 17
th
of June 2003. The family advocate was requested to file his report
by the 13
th
of June 2003. On the 17
th
of June 2003, Mr Van der Westhuizen filed a further memorandum
stating that he had obtained Dr Bredenkamp’s report and had
arranged
a meeting for the 13
th
of June 2003 with the first and second applicants to discuss this
report with them. Mr Van Der Westhuizen reported that first
applicant had become extremely emotional at this meeting and,
accordingly, he was not able to complete the meeting which was
postponed
until the 18
th
of June 2003. It was then understood that the legal representatives
of the parties would seek a further postponement of the matter
on
that day. Mr Van der Westhuizen reiterated that in his opinion, no
interim access order should be made.
On
the 30
th
of May 2003 Dr Bredenkamp completed her report, which was sent to
the family advocate. She recommended that access at specific
times
be allowed to first applicant under the supervision of a social
worker until there was no more need for that and that week
ends or
sleep overs should be dictated by G’s expressing a readiness for
them. She furthermore expressed the view that the parties
should
resolve the conflict between them and that the matter should be
settled out of court because G was suffering from this conflict.
On
the 18
th
of June 2003, a further order was granted by agreement that first
applicant could exercise interim supervised access to G for two
hours on a Friday afternoon between 15h00 and 17h00 at the
respondent’s home in the absence of Ms Van Zyl and the respondent.
A social worker, recommended by Dr Bredenkamp would supervise such
access and report back to the psychologist, who would monitor
the
access. It was agreed that the costs of supervision were to be paid
by the first applicant. Telephonic contact was ordered
between the
hours of 18h00 and 18h30 pm on a Wednesday evening. Certain
conditions and alternative arrangements were attached
to these
orders and a number of undertakings given by the applicants.
On
the 24
th
of July 2003, the applicants launched the second application as a
matter of urgency. The allegation is made therein that the

respondent willfully failed to comply with the provisions of the
interim access order made on the 18
th
of June 2003. An affidavit opposing this application was filed by
the respondent on the 29
th
of July 2003 and replied to on the 30
th
of July 2003. On the 7
th
of August 2003, by agreement, the second application was postponed
to the 4
th
division to be heard at the same time as the first application on
the 27
th
of August 2003.
The
family advocate filed a further memorandum in this matter on the
morning of the 27
th
of August 2003. It is apparent from this report and annexures
thereto that subsequent to the second application, there were three
concertinaed access periods, namely, on Friday the 8
th
of August, Friday the 15
th
of August and Friday the 22
nd
of August. The first two were supervised by Ms Loedolf, the duly
appointed social worker, and the last by Dr Bredenkamp and Ms
Loedolf.
Dr
Bredenkamp produced an addendum to her previous report to Mr. Van
Der Westhuizen. In this addendum, she described how both parties
were prepared by her in consultation to deal with the access visits
on a proper basis. She noted that when G was informed about
his
granny coming to visit him at his house, he crept up closely to his
father, became fidgety and conspicuously anxious. She
stated that
the respondent acted appropriately to allay G’s anxiety. She
furthermore reported that the contact had taken place
as agreed,
other than that the second two contacts were held later in the
afternoon because of extra classes that G had to take
after school.
Ms Loedolf reported that the initial contact was somewhat strained
but that, at the second contact visit, both the
first applicant and
G were more relaxed and interacted in a positive way. The last
visit was to commence at 15h15 pm. Just after
15h00, G left with
his nanny to fetch something for lunch at the café. They only
returned at approximately 15h30. In the interim,
the first
applicant had come inside the house and was very upset about the
time delay. According to Ms Loedolf and Dr Bredenkamp
she struggled
to contain her emotions but with the assistance of Dr Bredenkamp,
first applicant calmed down. As soon as she realised
that G was
late for the visit, she indicated to Dr Bredenkamp that she would
bring the lateness to the attention of her legal team.
Dr
Bredenkamp expressed the view that she thus showed how difficult it
is for her to be relaxed and flexible about the visits
and to
contain her own emotions. Instead she interpreted the lateness as a
conspiracy of the respondent and Ms Van Zyl against
her. Dr
Bredenkamp found it very difficult to reason with her. The first
applicant’s emotions did not go unnoticed by G. When
he asked his
granny how her day was, she replied “
it
was fine up till now.”
Dr
Bredenkamp expressed the view that it is not impossible that G could
have interpreted this as “
everything
was fine until you arrived
.”
G refused to hug his granny. Dr Bredenkamp expressed the
following view:-
“
I
can appreciate the fact that Mrs Townsend-Turner wanted some
physical contact with her grandchild, but instead of just allowing
him to spontaneously do what he feels right for him; he is
confronted with her, and not his need to make physical contact.
However,
it was clear that G picked up that something is the matter
with his grandmother and that he wanted to sooth her in a way, but
at
the same time having no mechanism to set her at ease he started
on concentrating on the game Mrs Townsend-Turner brought along.”
Dr
Bredenkamp expressed the opinion that it should not be expected of
such a young child to deal with adult emotions that he doesn’t
understand and then to have to contain such emotions. During the
course of the access visit, the first applicant phoned her home
to
make sure that her mother was being taken care of after which she
started crying with relief. G noticed this and asked “
what
”?
First applicant answered that “
she
had to sort out something
”.
Ms Loedolf was of the view that G had picked up on the first
applicant’s emotional state and had seemed troubled by it.
Dr Bredenkamp
expressed the view that the contact visits at G’s house were
unnatural and difficult for both the first applicant
and G.
Furthermore, she noted that they only played games together and did
not have much say to each other with regard to personal
things, for
example, there was no discussion as to G’s school or friends or
anything else. Her view was that this indicated
the estrangement
between them, but also a lack of attachment or bond. She felt that
G would have enjoyed playing games with anybody
else as well.
Furthermore, Dr Bredenkamp reported that she had had some contact
with a Ms Amie Rodes, G’s occupational therapist.
After one of
the access visits with his grandmother, the latter reported to have
found G to have behaved more childishly and been
more difficult than
was normally the case. Furthermore, Ms Van Zyl’s son Ettiene, had
observed that G had behaved aggressively
towards him after one of
these visits, which was not G’s manner.
Dr
Bredenkamp expressed the view that it is clear that the contact
visits are very stressful for the adults and that G is aware
of this
and negatively affected by this. Furthermore, it is apparent from
the report of Ms Loedolf that G is experiencing divided
loyalties.
In the presence of the first applicant he laughed and maintained a
close physical contact with her from time to time.
He appeared, at
least, to enjoy her first two visits. After her visits however, he
expressed to his parents and apparently to
his teacher and
occupational therapist that he did not enjoy the visits. Ms
Loedolf, in my view, appears to have correctly assessed
the
situation as being one where the little boy is trying placate both
adult factions. After one of the visits, Ms Van Zyl told
Ms Loedolf
that G had climbed under his blankets and said “
I
wish this would all end.”
Furthermore, he had been reluctant to come home from school on
those Friday afternoons of access with first applicant. Having
observed the inter-reaction and the effects of forced access on G
and the first applicant, Dr Bredenkamp recommended that “
two
options should be considered
”.
The first is that all contact should be terminated until such time
that both parties have put their animosity and distrust
about each
other to rest and are able to act in a civil manner towards each
other. According to her, this would only seem to be
possible once
Tanja’s estate has been finalised. She had contacted the executor
of the estate, who informed her that a number
of financial aspects
of the estate are still to be settled. She recommended that the
tension between the parties should be resolved
because it puts
unnecessary strain on G, who finds himself caught in the middle.
She expressed the view that because of his young
age, it cannot be
expected of him to carry on seeing his grandmother under the present
circumstances as by now he must have realised
that conflict between
the adults in his life had something to do with him, whilst he is
most definitely not the problem.
The second option
is that the court should decide about the rights of a grandparent to
see her grandchild under these difficult
circumstances and that, in
the event of the first applicant having a right to have an ongoing
relationship with G, supervised access
should be granted for a year,
whereafter G should be allowed to lead the way in deciding whether
he wished to have contact with
his grandmother or not. Finally, she
expressed the view that it is evident that harm had been caused to
the grandmother / grandchild
relationship as a result of the family
circumstances, which will not be easily restored. Furthermore
contact created a lot of
stress to all parties, G included. She
could not foresee that things would change much in future and
expressed the opinion that
it would be unfair and unjust to G to
carry on with trying to help him and his grandmother to rebuild
their relationship under
the present circumstances. She recommended
that the adult parties should lay to rest their differences and
start interacting with
each other in such a way that it will make it
possible for G to have a relationship with his grandmother under
less stressful circumstances.
She again expressed the view that the
parties should attempt to settle the matter out of court.
Mr Van Der
Westhuizen essentially expressed the same views as Dr Bredenkamp,
emphasising that, in his view, based on consultations
with the first
applicant as well as the reports that he has had, the first
applicant is concerned about her own interests in having
access to G
and not G’s interests. Furthermore, he submitted that there was
no evidence to suggest that she played a significant
parenting, or
any other role, in G’s life, or that a bond existed between them
to the extent that severance thereof would cause
harm to G. He
submitted that the fact that the first applicant was unable to
control her emotions in front of G was detrimental
to the latter’s
well being. Mr. Van Der Westhuizen ended his report with the
following remarks:-
“
Grant
is a well adjusted boy who seem (sic) to enjoy being with his
friends and people he can relate to which is age appropriate.
Nothing constructive came of his visits with the applicant, which is
not surprising, and there was no interaction between him and
the
applicant that could be described as positive or beneficial. The
normal situation would be that access is allowed when and
if G so
desires, and that he not be forced into having access with the
applicant for her benefit.”
Accordingly, he
recommended that no access rights be granted to the applicants, that
the first applicant receive therapy to help
her cope with her
emotional difficulties and that the respondent facilitate visits and
contact between G and the applicants at
G’s request.
Mr.
Van Der Westhuizen stated in his memorandum that this was not a
final report and more time was needed. He explained in court
that
what he had meant was that he had only received Dr Bredenkamp’s
addendum shortly prior to the hearing and he had had insufficient
time to prepare a full report setting out,
inter
alia
,
his experience in consultations with the parties. He stated that
his recommendations would not change in a final report.
Certain discussions
were held between the court and Advocates Louwrens, Van Der
Westhuizen and Weyer in chambers prior to the hearing.
The object
of these were to attempt to find common ground and facilitate
settlement of the matter out of court. I expressed the
view that
the parties should attend mediation in an attempt to resolve the
conflicts between them and that first applicant should
attend
counselling to assist her to understand her own role in the ultimate
refusal of the respondent to grant access to G.
Counsel attempted
to reach an out of court settlement, but were unable to do so. At
the hearing they indicated that both parties
were prepared to attend
mediation and that the court should order this. Furthermore first
applicant was prepared to attend counselling.
There was some debate
as to the terms of any mediation order, culminating in the parties
and Mr Van Der Westhuizen reaching an
out of court settlement in
this regard, which they wish to have incorporated in this court’s
order.
The dispute between
the parties related only to the main issue of whether access should
be granted or not. Both Mr. Van Der Westhuizen
and Ms. Weyer for
the respondent submitted that no access should be granted. Mr
Louwrens, for the applicant, submitted that access
should be
granted, alternatively, that the matter should be postponed for the
family advocate to do a further evaluation, as he
had indicated he
wished to do in his memorandum. In the interim, he submitted that
this court should allow the applicants defined
supervised access but
not on the previous basis. Furthermore, a postponement would allow
the first applicant to be counselled
and mediation to take place,
whereafter the court could make a final decision on the access. He
relied, in the main, on Dr Bredenkamp’s
second option and her
recommendation in her initial report that supervised access should
be allowed.
Before I turn to
the facts of the instant case, it is necessary to deal with the
legal situation.
There is currently
nothing to be found in the South African common law which indicates
that anyone has the “right” to access
to a minor child, other
than the parents of children born of a marriage. This principle is
expressed in the decision of the then
Appellate Division when
considering the rights of a natural father of an illegitimate child
to access as follows:-
“
According
to the law, as it is, the right to access depends for its existence
on parental authority. A father such as appellant,
does not have
that in the eyes of the law. But he may be granted access if that
is in the best interests of his child
.”
(B
v S
1995 (3) SA 571
(A) at 579 H).
Howie
JA, as he then was, writing for the full court in
B v S (
supra
)
,
summarised the position in South African law in regard to fathers of
illegitimate children to be the following at 583 G:-
“
.....current
South African Law does not accord a father an inherent right of
access to his illegitimate child. It recognises that
the child’s
welfare is central to the matter of such access and that access is
therefore always available to the father if that
is in the child’s
best interests.”
The learned judge
of appeal expressed the view that if there were sound sociological
and policy reasons for affording such fathers
an inherent right, the
matter must be dealt with legislatively.
On
the 4
th
of September 1998, the Natural Fathers of Children Born out of
Wedlock Act No. 86 of 1997 (“the Act”) commenced. Section 2
of
the Act regulates the position of such a father, granting a court,
on that father’s application, the power to “
make
an order granting the natural father access rights to ..... the
child on conditions determined by the court
.”
Furthermore, in terms of section 2 (2) such order can only be made
if the court is satisfied that it is in the best interests
of the
child.
These
legislative provisions accord with the common law as set out in
B
v S (
supra
)
.
It should be noted that the legislature has not seen fit to grant
an unmarried father an inherent right to access, but only
the right
to apply to court for such right.
In
B
v S (
supra
)
at 581 J - 582 A
,
the then Appellate Division expressed the following view:-
“
....
no parental right, privilege or claim as regards access will have
substance or meaning if access will be inimical to the child’s
welfare. Only if access is in the child’s best interests, can
access be granted. The child’s welfare is thus the central,
constant factor in every instance. On that, access is wholly
dependent. It is thus the child’s right to have access, or to
be
spared access, that determines whether contact with the
non-custodian parent will be granted. Essentially, therefore, if
one
is to speak of an inherent entitlement at all, it is that of the
child, not the parent.”
The South African
Law Commission, in its Working paper 62, project 100 investigated
the granting of visitation rights to grandparents
of minor children.
At the outset, the
commission points out that parental authority (insofar as it is
relevant to this case) is vested in the mother
and father of a child
born in wedlock and, on the death of one of the parents, it then
vests solely in the surviving parent.
Earlier
decisions of our courts illustrate that a court, as upper guardian
of a minor, had the power to interfere with the parental
authority
(which included the right to custody) in exceptional cases, which
“
exceptions
must be few and must rest on clear grounds and the grounds must be
founded in considerations of danger to the life, health
or morals of
the child
”.
(
Calitz
v Calitz
1939 AD 56
at 64
).
In
Van
Der Westhuizen v Van Wyk and Another
1952 (2) SA 119
(GW)
the court held that in the absence of danger to health or moral
life, a court did not have the power to interfere with the parental
authority and to remove a child from the parent in whom parental
authority vested in order to give custody of that child to a third
party.
In
Bam
v Babha
1947 (4) SA 798
(A)
Centlivres, JA, while distinguishing the matter of
Calitz
v Calitz (
supra
)
at 806
,
expressed the view that it was not clear that Tindall JA in that
matter intended the grounds upon which a court could interfere
with
parental authority to be exhaustive. He took the view that the best
interests of the child were paramount. (See also
Rowan
v Faifer
1953 (2) SA 705
(EDLD)
;
Petersen en ‘n Ander v Kruger en ‘n Ander
1975 (4) SA 171
(C)
).
In
the matter of
Short
v Naisby
1955 (3) SA 572
(D and CLD)
Henochsberg AJ, as he then was, expressed the following view at 575
B - C:-
“
It seems to me, however, that
the court has no jurisdiction to deprive a surviving parent of her
custody at the instance of third
parties, except under its power as
upper guardian of all minors to interfere with their custody, but
then only on special grounds.
Such special grounds include danger
to a child’s life, health or morals, but those are not the only
grounds on which a court
will interfere. Good cause must be shown
before a court will interfere, but good cause is not capable of
precise definition.”
In
S
v L
1992 (3) SA 713
(E) at 721
Mullins J expressed the view that the powers of the Supreme Court as
upper guardian of minor children, are not unlimited in the
sense
that the court may not interfere with a decision made by the
guardian of the child merely because it disagrees with that
decision.
Although
none of the above cases deal with the access of a third party to a
minor child, apart from
B
v S (
supra
)
,
what they serve to illustrate, in my view, is that our courts have
always been reluctant to interfere with the parental authority,
except in special circumstances. Decisions as to with whom a child
should have contact, lie in the hands of the person or persons
vested with parental authority.
This
court has been referred to a number of articles stating and debating
the law in a number of foreign jurisdictions with regard
to
grandparental access to a minor child. In all of these
jurisdictions it has been recognised that any intervention in a
family
may have unsettling effects on the dynamics of that family
which may in turn effect the welfare and interests of the child. I

am in respectful agreement with this conclusion which accords with
the approach adopted by South African Courts and in my view,
accordingly, a court must exercise circumspection before
intervening. (
Schoonmaker
III et al: Constitutional Issues Raised by Third Party Access to
Children: Family Law Quarterly Volume XXV, Number 1,
Spring 1991 at
page 95
;
Wiertz
- Wezenbeeck; Visitation Rights of Non-Parents and Children in
England and the Netherlands: Family Law Quarterly, Volume
31, Number
2, Summer 1997 at page 355
;
Labuschagne
and Van der Linde: Sosiale Toegangsreg van Grootouer en Kleinkind
;
Stellenbosch
Law Review 2002 (3) at page 415
;
Kaganas
and Piper: Grandparents and the Limits of the Law: International
Journal of Law and the Family 4, (1990), page 27; South
African Law
Commission Working Paper (supra) chapter 2 page 10; Fernandez:
Grandparent access: A Model Statute: Yale Law and Policy
Review Vol
6: 109 1988; Douglas and Lowe: Grandparents and the Legal Process:
Journal of Social Welfare Law page 89)
.
There
has been much academic debate surrounding this area of the law in
all jurisdictions. What emerges from this, in my view,
is that
there has been a growing recognition of the important role
grandparents can play in the development of the child, particularly
with the high divorce rates and the changing face of the family in
Western society. Whereas the common law in the jurisdictions
referred to in the articles above, did not favour the view that any
non-parents should have inherent rights to access, but that
they
should have the
locus
standi
to apply for such rights in certain special circumstances,
legislation has increasingly been promulgated to regulate the
question.
However, few have gone so far as to allow grandparents an
inherent right of access. In all the jurisdictions, the best
interests
and welfare of the child is of paramount importance. This
has been retained in the legislation. What emerges too, is that
courts
in foreign jurisdictions, will generally not allow access by
a grandparent where there is conflict between the grandparents and
parents of the minor child as such contact would seldom be in the
child’s best interests. The law with regard to grandparental
access in foreign jurisdictions is in a state of flux.
The
South African Law Commission Report (
supra
)
at page (iii) recommended legislation to the effect that a) if a
grandparent of a minor child is denied access to the child by
the
person who has parental authority over that child, such grandparent
may apply to court for an order granting him or her access
to the
child and the court may grant the application on such conditions as
the court may think fit; b) the court shall not grant
access to a
minor child unless it is satisfied that it is in the best interests
of the child; and c) the family advocate be involved
in such cases.
The Commission held the opinion that the present common law
position in terms of which parents have the exclusive
right to
decide to whom and under what circumstances to grant access rights
or visitation rights, does not in all cases meet the
current needs
of society and that adjustment of our law by way of legislation
regarding this matter is necessary.
The
matter of
B
v S (
supra
)
was decided after the publication of the Law Commission Report.
Although dealing specifically with the rights of a father to access
to his illegitimate child, in my view, the effect of this decision
is that any third party may approach the court to have rights
of
access granted to him or her if such rights of access are in the
best interests of the child. In common law, apart from the
direct
blood relationship between father and child, the father of an
illegitimate child is in no different position to any third
party
seeking access to a child. He has no inherent rights to access any
more than a grandparent does.
Both counsel for
the parties and Mr Van der Westhuizen are ad idem that the aforesaid
view is the current state of the common law
in South Africa.
No legislation has
followed upon the Law Commission recommendation to date and this
court must therefore follow the common law.
B
v S (
supra
)
at 584 I
laid down that, in considering this issue, where a “
parental
couple’s access (or custody entitlement) is being judicially
determined for the first time - in other words where there
is no
existing court order in place - there is no onus in the sense of an
evidentiary burden, or so-called risk of non-persuasion,
on either
party. This litigation is not of the ordinary civil kind. It is
not adversarial
.”
Furthermore, it was held, at 585 E, that because the welfare of a
minor is at stake, a court should be very slow to determine
the
facts by way of the usual opposed motion approach i.e. in accordance
with the principles set out in
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
.
“
That
approach is not appropriate if it leaves serious disputed issues of
fact relevant to the child’s welfare unresolved
”.
In the instant
matter, this court has had the benefit not only of the papers, but
also of the expert assessment of Dr Bredenkamp,
Ms Loedolf and the
Family Advocate, Mr Van der Westhuizen. I intend to approach this
matter, having regard to these objective
reports as also those facts
on the affidavits that are common cause. It is, in my view, not in
G’s interests to draw this matter
out by ordering oral evidence on
the disputed facts and, it is in any event, not necessary to decide
the disputed facts as will
appear below.
A brief resumé of
the facts with regard to access to G leading up to this application,
is set out above. The real disputes relate
to the reasons why
access to G has been problematic.
It is common cause
that the first respondent has, at times, allowed the applicants
access to G. He has adopted the attitude on
the papers, which is
not disputed, that he has tried to maintain a healthy relationship
between G and the applicants. Certain
concerns caused him to limit
and sometimes refuse that access.
It is common cause
that G is the only grandchild of the first applicant and that his
late mother was the first applicant’s only
child. Furthermore,
the first applicant admits to being understandably emotional after
the death of her daughter. Respondent
felt that her emotionalism
when she saw G, unsettled the little boy and made it difficult for
him to settle back into his own home.
This attitude, in my view, is
understandable, given that G had been moved from his own home to the
applicants’ home and then
back to his home again after his
mother’s death. It was necessary that he be given stability and
routine and security at that
time.
It is, furthermore,
common cause that the first applicant removed certain photographs of
herself that belonged to her and a box
of cards relating to Tanja’s
childhood from respondent’s home. There is a dispute as to
whether she did so with permission
or not. It is not important, in
my view, whether this dispute be resolved. What is important is
that the respondent is clearly
aggrieved by what he viewed as an
intrusion into his privacy.
It is common cause
that relations became strained between the first applicant and the
respondent due to disputes specifically regarding
a family trust.
Matters deteriorated and the respondent and the first applicant were
not communicating effectively. This led
to the first applicant, on
her own admission, telephoning G’s school and attempting to visit
G at school, despite her knowledge
that the respondent did not wish
her to have access to him. This type of situation led to an
incident, during May 2000, where
first and second applicants came to
G’s school, resulting in respondent phoning the police and second
applicant shouting abuse
at the respondent when he drove away from
the school. Precisely why the police were called and what happened
on that occasion
is in dispute. It seems to me, however, that the
details of this dispute are not important but what is important is
that this
incident occurred at G’s school, which is clearly not in
G’s interests.
The respondent
alleges numerous incidents where the first applicant contacted his
domestic staff or office staff, which he regarded
as an intrusion on
his private and business affairs. The reasons why they were
contacted are in dispute. Again, the dispute itself
is not
important, in my view, what is important is that contact was made
with these people against the respondent’s wishes, which
is not
disputed. This clearly soured relations between the respondent and
the first applicant.
It is common cause
that there was an incident where the first applicant slapped the
respondent in full view of his staff at his
business premises when
she arrived there uninvited. It is also common cause that during
this incident a plate glass door was broken
because of force applied
to it by the first applicant. It is common cause that the reason
first applicant approached the respondent
at his business premises
was because access to G had been denied her. It is not disputed
that, in an attempt to allay further
scenes, the respondent allowed
G to see the first applicant at G’s home. This was shortly before
they left for overseas in 2002.
The first applicant
does not deny that when the respondent, Ms Van Zyl and G went to
Portugal she phoned and said that she could
not “survive”
without seeing G and that she furthermore borrowed money from the
family trust to visit G overseas. It is common
cause that she
wished to visit the family in Portugal. It is not denied that the
respondent and Ms Van Zyl found this an unwarranted
intrusion into
their holiday and business time and as a compromise suggested that
they meet in Hamburg.
The first applicant
admits to telephoning G every second day but expresses the view that
this is not excessive or unusual.
There are numerous
allegations by the respondent of inappropriate remarks made to G
when the first applicant had access to him which
are denied by the
first applicant. There are, however incidents where she admits that
she made, what in my view, are inappropriate
statements to a young
child. There was an incident where the respondent, because of
business commitments did not bring G through
to see her as he had
indicated he might. Instead of addressing herself to the father’s
remissness, she phoned G to express her
disappointment. This upset
the child. Furthermore, after the first applicant had been asked to
curtail her calls to G, she did
not comply and there was a call
overheard by a friend of the respondent, one Mary Slater, during
which the first applicant admitted
she had told G not to tell his
parents that she had phoned him. This caused additional acrimony as
respondent and Ms Van Zyl felt
that they had worked hard to maintain
open communication with G and that it placed him in an invidious
position when he was told
not to communicate things to his parents.
Another incident
which the first applicant admits to is that she threw a packet of
sweets over a garden wall for G’s nanny to
give to G. This was
necessary according to her because of the lack of contact with G.
Again there was no attempt to follow appropriate
channels. Had she
wished to give G a gift, it was not appropriate for her to do this
behind his parents’ back.
It is quite clear
from what is common cause that the relations between the parties
were extremely strained and that this impacted
on G. The first
report of Dr Bredenkamp confirms this.
In
her initial, full report, Dr Bredenkamp refers to the various roles
which can be played by an extended family member where a
family
situation changes after the death of a parent. She also refers to
G’s current developmental needs. She did personality
tests on
both the first applicant and the respondent. She also interviewed
the second applicant and Ms Van Zyl. She spent some
time with G,
inter alia
,
assessing his relationship with the first and second applicants. It
is important to note, in my view, that Dr Bredenkamp interpreted
G’s
attitude to his grandmother as being a positive one. She concluded
that the first applicant forms an integral and important
part of G’s
life, that G likes to visit his grandmother who fulfills the role of
a fun and “activity” partner and that G
experiences warmth and
emotional affection from her. The second applicant plays a
secondary role. G wished his family to get
rid of their “stuff”.
She furthermore stated that G’s relationship with his grandmother
is less of a problem to him than
the ongoing fights in the family.
This is a typical situation where G had been caught in the middle.
She expressed the following
opinion:-
“
Children caught in the middle
react differently to conflict between family members, but, in
general, a history of aggression and
conflict in the family has been
strongly and consistently associated with emotional, behavioural and
social problems in children.
School aged children are much more
likely than their younger counterparts, to have a range of
reactions, starting with guilt.
Children this age often feel
responsible for the conflicts of their family members.”
Her recommendations
in her initial report were that supervised access should be granted
to the applicants in a structured way, along
the lines of what was
ordered by this court during June of this year. However, she
repeatedly expressed the view that the conflicts
in the family were
those of the adults and that the parties should take every step to
resolve the conflict between them. G was
suffering as a result of
these conflicts.
She furthermore
recommended that the first applicant should refrain from intruding
herself into the respondents’ domestic and
business life and that
she should avoid conversing about G’s deceased mother.
Dr Bredenkamp, in
analysing the personality of the first applicant, described her as
not having a personality disorder, but of having
a personality style
which is best described as “compulsive, narcissistic, schizoid and
aggressive”. Despite this rather unflattering
description of her
personality, Dr Bredenkamp was of the view that she could play a
positive role in G’s life should she show
more sensitivity to G’s
needs. Dr Bredenkamp agreed with the experience of the respondent
that the first applicant was an intrusive
person who “can consume
one’s life and invade one’s private space”. This was Dr
Bredenkamp’s own experience with the
first applicant. She based
this impression on the first applicant’s numerous phone calls to
her, even after hours, despite an
undertaking from Dr Bredenkamp to
keep her informed. On these occasions, Dr Bredenkamp found that she
interfered with her work
schedule and intruded on her time with
other patients. The first applicant often broke down and cried and
took on the role of
the injured party. She even became distrustful
of Dr Bredenkamp’s motives. Dr Bredenkamp reported that there was
a situation
where she was almost forced to give an opinion on
supervised access before she had had an opportunity to interview G.
She found
this totally unacceptable and in her opinion it showed the
first applicant’s intolerance with a sensitive issue regarding the
minor child. She described the first applicant as having a
difficult personality.
I am of the view,
having read the report of Dr Bredenkamp as well as her subsequent
addendum and having heard the family advocate,
as also having paid
regard to those aspects which are common cause on the papers, that
the first applicant’s behaviour towards
the respondent, Ms Van Zyl
and G, has been unduly intrusive and insensitive to their needs.
It is my view that
it is clear from the common cause facts, Dr Bredenkamp’s report
and the problems that arose during the third
access visit, that the
first applicant does not fully appreciate what is in the best
interests of G. She is rather more concerned
that her own needs be
fulfilled. The way she reacted to a 7 year old child when he
arrived late and she was upset about it was
not appropriate. I bear
in mind that she has not been able to explain her reaction or deal
with this report. However, it was
never suggested by Mr Louwrens
that there was any inaccurate reporting of this access visit. It is
also clear that, as indicated
by the respondent and Dr Bredenkamp,
the first applicant has difficulty in controlling her emotions.
I agree with Mr Van
der Westhuizen that the ideal situation is that a normal relaxed
access to his grandmother and the second applicant,
on a regular
basis, at the instance of G or at the suggestion of respondent
should happen. This clearly cannot happen until the
first applicant
takes responsibility for her role in the conflict and understands
why the respondent has refused her access to
G in the past.
Furthermore, there is a pressing need for the adults to try and
resolve their conflicts and to build up an atmosphere
of tolerance
of each other, and respect for each other’s points of view.
Accordingly, I intend to make the order with regard
to the mediation
which the parties have agreed to. The parties are furthermore,
encouraged to use mediation, or a counsellor,
to resolve any future
issues with regard to applicant’s relationship with G. The
adversarial nature of court actions and their
cost tend to deepen
the divide.
The first applicant
must understand that the respondent as G’s father, is entitled to
make decisions with regard to his child.
This court has not been
left with the impression that the respondent, at any stage, acted
with anything but real concern for his
child’s best interests. It
is, in my view, clear that the respondent has been greatly troubled
by the situation and would encourage
a healthy relationship between
his son and the applicants. Furthermore, it is clear from the
report of Dr Bredenkamp and, indeed
from the admissions made by the
first applicant, that Ms Van Zyl is an important person in G’ s
life, that she has taken the
place of his mother and that they have
a close and good relationship. Any negative remarks about or
attitudes to Ms Van Zyl by
the applicants that come to G’s
attention will have a detrimental impact. The first applicant must
trust that the respondent’s
decisions for his family and for G are
taken in the best interests of that family and G and she must show
respect for his decisions.
If she wants a relationship with G,
which is to be encouraged, she must refrain from involving herself
in the respondent’s family
and work life. She must accept that
the respondent and G have the right to get on with their lives and
to build strong family
relationships in their nuclear family, in the
interests of G’s security. She must also accept that her role in
G’s life is
ancillary to that of this nuclear family. She must
behave towards G, and in G’s presence in a manner which is
appropriate to
his age and which will not confuse him, or in any
way, place him in a situation where he is required to feel divided
loyalties.
She must understand that she must respect respondent and
Ms Van Zyl’s wishes with regard to the giving of presents etc. to
G,
whether or not she agrees with them.
Although this court
has sympathy for the position of the first and second applicants,
and particularly the difficult emotional times
that the first
applicant has been experiencing, after careful consideration, I am
of the view that in the light of the conflict
within the family and
the difficult relationships at present, it cannot be in G’s best
interests to allow the applicants access
to him and so place him in
the middle of a situation which will confuse him and lead him to
feel guilt and divided loyalties. The
abnormality of judicially
sanctioned enforced visitation has been shown not to be desirable in
this matter. I am in agreement
with Mr Van der Westhuizen that any
relationship between G and the applicants should be allowed to
develop spontaneously and in
an atmosphere of accord between the
parties. The first applicant must refrain from pushing the issue
and the respondent and Ms
Van Zyl must be encouraged to allow such
spontaneous contact but only when the relations between the adults
have been mended to
the extent that contact might take place in a
manner that would benefit G.
Accordingly, it is
my view that the application must be dismissed.
I turn to consider
the application that respondent be found guilty of contempt of court
in not complying with this court’s order.
It is well
established that an applicant for committal must show:-
that an order was
granted against the respondent; and
that respondent
was either served with the order or was informed of the grounds of
the order against him and could have no reasonable
ground for
disbelieving the information; and
that respondent
has either disobeyed it or has neglected to comply with it.
Once
it is shown that an order was granted and that respondent has
disobeyed or neglected to comply with it, wilfulness will normally
be inferred. (
Consolidated
Fish (Pty) Ltd v Zive and Others
1968 (2) SA 517
(C) at 522 E - H
;
HEG
Consulting Enterprises (Pty) LTD v Siegwart and Others
2000 (1) SA
507
(C) at 518 E
).
In
Clement v Clement
1961 (3) SA 861
(T) at 866 A
it was further held that a person’s disobedience must not only be
wilful, but also
mala
fide
.
In
all the aforementioned cases and those which they follow, it was
held that once it is shown that an order was granted and that
respondent had disobeyed or neglected to comply with it, both
wilfulness and
mala
fides
would be inferred. The onus would then be on the respondent to
rebut such inference on the balance of probabilities.
In
Uncedo
Taxi Service Association v MTWA and Others
1999 (2) SA 495
(E) at
500 H - 502 G
,
the correctness of placing an onus on a respondent has been
questioned in the light of the present Constitutional dispensation.

The view was expressed in that matter that it would be more
appropriate to speak of an evidentiary burden resting on the
respondent
to demonstrate his
bona
fides
and the fact that the disobedience of the court order is not wilful
or
mala
fides
.
This
question has not been argued before me in the instant matter, and in
my view, it is not necessary to decide it because of my
view of the
facts. The decision in this matter is based on the undisputed facts
and those alleged by the respondent as is required
of this court in
motion matters. (
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd (
supra
)
).
It
is common cause that, on the 18
th
of June 2003, this court issued an order by agreement between the
parties allowing the first applicant interim supervised access
to G
at specified times and that various ancillary orders were made to
regulate this process. It is furthermore, common cause
that the
respondent was aware of this order and its terms.
The applicants
maintain that the respondent was:-
in
wilful default of paragraph 1.5 and 5.3 of the order in that he
failed to ensure that G was available for first applicant’s
access on Friday the 18
th
of July 2003; and
in
wilful default of paragraph 2.1 of the order in that he failed to
allow applicants telephonic access to G on Wednesday the
16
th
and Wednesday the 23
rd
of July 2003; and
in wilful default
of paragraph 4.2 of the order in that be breached his undertaking
to consult with G and Dr Bredenkamp to, prepare
G for the
applicants’ access to G.
With regard to the
default alleged in paragraph a) above, it is common cause that it
was envisaged by the order, if paragraph 1.5
and 5.3 are read
together, that the first physical access to G should take place on
Friday 18 July 2003. It was furthermore, common
cause that this did
not occur.
With
regard to paragraph b) above, it was common cause that respondent
did not make G available for telephonic access on either
the 16
th
or 23
rd
of July 2003.
With
regard to the default alleged in c) above, it is common cause that
the respondent only consulted with Ms Loedolf and G after
the
launch of the contempt application on the 24
th
of July 2003.
It
was common cause that G had returned to South Africa with the
respondent and Ms Van Zyl on the 10
th
of July 2003 and that thereafter Ms Van Zyl had taken G for a
holiday to their beach house in Hermanus until G returned to school
on 21 July 2003. Respondent explained that the reasons for this
were firstly that G had been cooped up on their return and that
they
felt that it would be good for him to have the space to run around
at the beach house, and, secondly, the respondent had received
correspondence from Dr Bredenkamp on his return from New Zealand
which left him confused as to the implications of the court order
of
the 18
th
of June. He explained that he immediately sought advice in this
regard, but his attorney was away until the 28
th
of July. Accordingly, he contacted Mr Van der Westhuizen, who
indicated to him that matters should be cleared up with Dr
Bredenkamp.
He attempted on a number of occasions to contact Dr
Bredenkamp without success. He discussed the taking of G to
Hermanus with
Mr Van der Westhuizen, who raised no objections. In
the absence of his attorney, he also consulted a clinical
psychologist, Dr
Chris Petty, to advise him. This explanation is
supported by correspondence.
Respondent
explained that on the 11
th
of July 2003, the day after he returned to South Africa, he saw a
copy of Dr Bredenkamp’s letter of the 2
nd
of July 2003 addressed to the Family Advocate. It is necessary to
refer briefly to this letter, a copy of which, it is common
cause,
both parties received. It is apparent from this letter that it was
written by Dr Bredenkamp on receipt of the said court
order by her.
She begins the letter by stating that “
in
accordance with the agreement between the parties the process will
proceed in the following manner
”.
In eleven separate paragraphs, she sets out her view of how the
matter will proceed. She notes that she will meet with the
first
and second applicants during the week of the 14
th
of July to prepare them for the first contact with G, as is
envisaged by the order. She notes that she will do the same with

the respondent, Ms Van Zyl and G. She then states the following at
numbered paragraph 6:-
“
Dr Bredenkamp will have
individual sessions with G to test his preparedness and willingness
to meet with his grandmother before
the actual access will take
place. The date of the first visitation will be determined during
these sessions; whereafter arrangements
for access will commence.
Both parties will be informed when the first visit on a Friday will
take place.”
Numbered paragraph
10 of her letter is also relevant. She suggests that after a period
of three months she and the social worker
should meet with the
family advocate and the attorneys to provide personal feedback on
the access process and progress made. At
that stage, further
recommendations about access will be put to the legal teams.
The
respondent was concerned about the letter and the implications
thereof, as he did not understand the court order to require
individual sessions with G to test his preparedness and willingness
to see his grandmother. He harbored reservations about G seeing
his
grandmother given the first report of Dr Bredenkamp, and her
description therin of first applicant’s personality. The letter
left him with the impression that Dr Bredenkamp appeared to have
changed her mind with regard to the access agreed upon. He
immediately
attempted to find some clarity, starting on the evening
of the 11
th
of July. It is clear to the court that the respondent was concerned
not to be in contempt of the court order. At the same time,
he
wished to have clarity on the position before subjecting G to the
access. It is thus clear that he accepts that the non-compliance
with the court order with regard to physical access was intentional
but, denies that it was
mala
fides
.
In my view, it is apparent from the facts alleged by the respondent
that he acted
bona
fides
throughout in attempting to clarify the position. He acted also on
the advice of the family advocate. It has been held that even
where
a respondent’s misunderstanding of the position or opinion was
unreasonable, that such unreasonableness per se does not
indicate
the absence of bona fides. (
Noel
Lancaster Sands Edms. Bpk v Theron en Andere
1974 (3) SA 688
(T) at
691 H - 692 G
).
In the light of
there being no express mention of the date on which access is to
commence, read with Dr Bredenkamp’s letter as
to the manner in
which the order would be implemented, it cannot, in my view, be said
that the respondent’s opinion that the
matter needed to be
clarified was unreasonable, neither was his reliance on Mr Van der
Westhuizen’s advice.
Furthermore, the
respondent states that with regard to the telephonic access, he was
of the opinion that the court order meant that
telephonic access
should only commence after physical access had taken place.
Paragraphs
2.1 to 2.5 of the court order, dealing with telephonic access, again
make no reference to an express date when such access
should
commence. Paragraph 2.1 provides that the first applicant shall be
entitled to have telephonic contact with G in the alternate
weeks
which fall in between G’s access period with the first applicant.
The respondent interpreted this to mean that telephonic
access would
not take place until after physical access had taken place. His
interpretation of this order can also, in my view,
not be regarded
as unreasonable. It is not necessary to go into the question of
whether the interpretation is correct or not for
this reason. I am
of the view that the respondent has shown on a balance of
probabilities that, even if he were to have been in
breach of this
part of the order, that such breach was not intentional, neither was
it
mala
fides
.
As
indicated, it is correct that the respondent did not attend any
meetings with Dr Bredenkamp until after the launch of this
application.
Part of the reason for this was that G was not
available until after the 21
st
of July. His removal of G to Hermanus has been, on the
probabilities, in my view, shown to have been
bona
fides
.
I am not of the view that he deliberately did so to frustrate the
terms of the order. He was assured by the family advocate
that his
removing G would not be a problem under the circumstances.
Dr Bredenkamp was
appointed to advise the court and the family advocate in this matter
at the request of the family advocate. It
is not unreasonable, in
my view, to have accepted the family advocate’s advice under these
circumstances.
I
am in agreement with the respondent’s submission that the
applicants and their attorney were also of the view that Dr
Bredenkamp’s
letter of the 2
nd
of July 2003 contained certain misconceptions of the court order.
However, these misconceptions were not pointed out to Dr Bredenkamp
by the applicants until a letter addressed to her on the 24
th
of July 2003. Their correspondence to her prior to that dealt only
with their objection to her indication in numbered paragraph
10 of
her letter that some 3 months were required whereafter she would
make recommendations as to further access. There was a
concern that
the matter should be dealt with finally on the 27
th
of August when it was set down for hearing. This correspondence was
sent to the respondents’ attorneys on the relevant dates
by
facsimile. Furthermore, it is not disputed that at no stage did the
applicants’ attorneys directly contact the respondents’
attorneys, to enquire as to the reasons for the apparent
non-compliance with the order and/or to put him to terms in this
regard.
Prior to the 24
th
of July 2003 when this application was launched, the only indication
which the respondents’ attorneys had as to any actions being
taken
by the applicants in this regard, was contained in a letter of the
17
th
of July 2003 addressed to Dr Bredenkamp, a copy of which was faxed
to respondents’ attorneys indicating that, in the applicants’
view, the respondent and Ms Van Zyl had failed to comply with the
court order and that they would consult with their client to
take
the necessary legal steps to enforce the provisions of the order.
To the knowledge of the applicant, Mr Weiner, the respondent’s
attorney who had been dealing with the matter was overseas. I am of
the view that the applicants’ attorneys would have been
well
advised to have directly addressed the respondents’ attorneys in
correspondence with regard to any intention to initiate
contempt of
court proceedings prior to the launch of the proceedings. Indeed,
it appears from their letter to Dr Bredenkamp, dated
the 24
th
of July 2003, that they consulted and received instructions to bring
the contempt of court application on the 24
th
of July 2003. Had they at that stage contacted the respondents’
attorneys, the application may have been unnecessary.
For
the reasons set out above, I am of the view that the respondent was
not in contempt of the court order in that, even if he were
in
default thereof, I am of the view that he was not acting wilfully or
mala
fides
.
Accordingly, the application must be dismissed.
I turn to deal with
the question of the costs of both applications.
In
the matter of
Bethel
v Bland and Others
1996 (4) SA 472
(W)
Wunsh J set out what he considered to be the correct approach to
costs in applications involving questions as to the best interests
of a child. I am in respectful agreement with the following summary
thereof at 475 E - I by the learned judge:-
“
1) Generally
speaking, a successful litigant is entitled to his or her costs.
While it is
quite true that a custody dispute should not be seen as an
adversarial contest in the ordinary sense, but rather as
an enquiry
into the best interests of the child, it cannot be denied that in
most cases the litigants are advancing their own
preferences and
seeking satisfaction of their love of the child. Often, too, the
papers contain many attacks on the character
and conduct of the
opponents.
On the other
hand, it is also a consideration that a party should not be
discouraged from putting up a case which he or she, on
broadly
reasonable grounds, thinks to be in the interests of the child for
fear of having costs awarded against him or her if
unsuccessful.
By the same token, a party who is, on what turn out to be good
grounds, confident that his or her case will prevail,
should not be
discouraged from taking or resisting action because of the costs
which he or she will incur.
However bona
fide and concerned a party may be, if his or her opponent’s
judgment of the issue prevails, it is not, in the absence
of
circumstances justifying it, fair that the opponent should be
mulcted in his or her own costs.”
Mr Louwrens
submitted that the applicants had no choice but to launch an
application to court to ask for the court’s assistance
to gain
access to their grandchild. He submitted that the application had
resulted in some progress being made insofar as there
has been an
agreement reached with regard to mediation. He submitted that
without this application, the parties would not have
agreed to
attend mediation. I cannot agree with this latter submission as
mediation was never suggested at any stage by the applicant,
neither
was the invoking of the assistance of an independent counsellor
prior to the launch of the application. Had the applicants
suggested such a course, there is nothing to suggest that the
respondent would have opposed it.
Mr Louwrens
furthermore submitted that, with regard to the first application,
each party should pay his or her own costs. He suggested
that this
would assist in building the relationship between the parties. Ms
Weyer, on the other hand, while accepting that it
might smooth the
relationship were each party to pay their own costs, submitted that
the respondent had been put to considerable
costs by what was, in
effect, three substantive applications all initiated by the
applicant. She furthermore submitted that given
the wide orders
sought by the applicant in the first application, the respondent had
had no option but to oppose the matter. She
further submitted that
the litigation had only succeeded in increasing the hostilities
between the parties and that all moneys
expended thereon by the
respondent meant that less money would be available for G’s needs.
I have considered
the arguments of counsel, the undisputed facts of the first
application and the findings of this court. Although
the launch of
the proceedings in this court may be understandable, given the
soured relations and attendant difficulties in communication
between
the parties, and respondent’s refusal to allow the first applicant
access to G, first applicant has, in my view, shown
little insight
or sensitivity to G’s needs in so doing and throughout the
proceedings. It would have been preferable had she
explored other
options to facilitate improved family relationships before she
sought the assistance of the court.
Furthermore,
although the applicants’ frustrations with the slowness of court
process are also understandable, the pushing for
interim access
prior to the finalisation of the matter was not advisable and
ultimately led to more difficulties and problems for
G. Although
the applicants had some measure of success in that application, it
arose out of the respondent’s preparedness to
be guided by Dr
Bredenkamp’s advice.
I agree with Ms
Weyer that the access order sought was very wide and, if granted,
would cause quite considerable inroads into G
and his family’s
choice of their free time pursuits, time with friends, family
holidays etc. What is of more importance, however,
in my view, is
that the respondent was genuinely concerned about what he perceived
as the negative impact access to his grandmother
was having on G.
This negative impact was exacerbated by the conflict between the
adults, however, his concerns also related to
the over emotionalism
of the first applicant and her inappropriate behaviours towards G.
It is quite apparent that while he was
concerned to try and maintain
a healthy relationship between the first applicant and her
grandchild, he was not prepared to allow
such relationship to upset
his son. His concerns were to an extent borne out by the assessment
of the first applicant’s personality
style by Dr Bredenkamp and
the first applicant’s demonstrated lack of sensitivity to the
needs and emotions of this young child.
As indicated, it is
my view that the first applicant has, in her dealings with
respondent and G been driven by her own needs and
preferences rather
than G’s best interests. Although it is fully understandable that
the first applicant wished to and still
wishes to maintain contact
with her grandchild, there seems to have been little concern for the
effect of such contact on G in
the emotion-charged and conflictual
family circumstances or of her, sometimes inappropriate behaviour
towards him.
In my view, in all
the circumstances, the respondent cannot be faulted for opposing the
application and placing his concerns before
this court.
It is undisputed
that the respondent has caused two postponements of the main
application as he was absent on agreed court dates.
However, I am
not of the view, that the matter would have been able to proceed on
those dates, in any event, as neither Dr Bredenkamp
nor the family
advocate had completed their reports.
Having anxiously
considered all the relevant factors, I am not of the view that the
circumstances of the first application are such
that the court
should depart from the general principle that the costs follow the
result.
The
contempt of court application was brought somewhat precipitately, in
my view, and without proper communication between the attorney
for
the applicants and the respondent, which may have made the
application unnecessary. In addition, once the respondent’s

explanation had been received, it was quite apparent that his
default had not been
mala
fides
or wilful. Despite this, the applicant persisted in that
application, seeking that the respondent be punished for his alleged
contempt. In my view, there are no grounds on which the respondent
should be mulcted in costs on the second application.
In the result the
following orders are made in these matters:-
The first
application, (case no. 524/2003) is dismissed.
The second
application, (case no. 6055/2003) is dismissed.
The first and
second applicants are ordered to pay the respondent’s costs in
both applications, jointly and severally, the one
paying, the other
to be absolved.
The parties are to
attend mediation, as directed by the appointed mediators and in
terms of this order, in order to reach resolution
on the areas of
conflict between them, or the manner of dealing with such conflicts
appropriately in general, and, in particular,
so as not to impact
negatively on G’s welfare.
4.1 There shall be
two co-mediators appointed by the Office of the Family Advocate
within seven days of the granting of this Order,
should the parties
themselves not be able to agree on the mediators from the list of
mediators made available to them through the
office of the Family
Advocate.
4.2 The mediators
are requested to mediate the issues of conflict between the parties,
which issues the parties shall themselves
identify at the mediation.
4.3 If, in the
opinion of the parties and the mediators, the issues of conflict
have been sufficiently resolved, then and in that
event the
mediators may attempt to mediate the issue of access with the
parties.
4.4 If after four
sessions of mediation, or three months, whichever occurs first, the
mediators in their sole discretion should
conclude that the issues
of conflict are not capable of being mediated, they shall file a
certificate to this effect with the office
of the Family Advocate.
4.5 The costs of
the mediation shall be shared equally between the Applicants and the
Respondent.
4.6 It shall be in
the discretion of the mediators when the mediation sessions shall be
held, save that such sessions shall commence
within 2 weeks of the
granting of this Order,
4.7 Termination of
mediation shall take effect on the filing of a certificate as
contemplated in 4.4 above, or, in the event of
the conflicts being
capable of mediation, at the discretion of the mediators in
consultation with the parties.
KNOLL
J