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[2024] ZAFSHC 292
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J.G and Others v M.S.L (4457/2024) [2024] ZAFSHC 292 (17 September 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
No: 4457/2024
In
the matter between:
J[
…
]
G[
…
]
(Biological
Father)
1
ST
APPLICANT
J[…]
J[…] G[…]
(Paternal
Grandfather)
2
ND
APPLICANT
J[…]
A[…] G[…]
(Paternal
Grandmother)
3
RD
APPLICANT
and
M[…]
S[…] L[…]
(Biological
Mother)
RESPONDENT
MINOR
CHILD:
A[…]
G[…] (ID NR: 2[…])
REASONS
FOR JUDGMENT
DELIVERED
BY:
MHLAMBI, J
DELIVERED
ON:
17 SEPTEMBER 2024
[1]
On 19 August 2024, I granted the following order:
“
The
application is dismissed with costs on a scale between attorney and
client, including the costs of counsel on scale A, to be
paid by the
Applicant jointly and severally, the one paying the other to be
absolved
”.
[2]
On 20 August 2024, I was requested to furnish reasons for the facts I
found to be proven and the
reasons for the judgment. What follows are
my reasons for the order and the judgment.
[3]
The applicants approached the court on an urgent basis, seeking the
following relief:
“
1.
Permitting this Application to be heard as one of urgency in terms of
Rule 6(12) (a) and dispensing
with the ordinary forms and service
provided for in the Rules, insofar as may be necessary, and disposing
of this Application at
such time and place and in such manner and in
accordance with such procedure as to the Court deems fit;
2.
That the minor child, with immediate effect, be placed in the interim
primary residence of the First
Applicant, at 1[…] B[…]
Street, Heidelberg in terms of Section 23(1) of the Children’s
Act, and during the
periods which he is abroad, with the Second and
Third Applicants at, 2[…] U[…] Street, Heidelberg, who
will provide
interim primary care to the minor, which includes the
right to enrol the minor in K[…] School in Heidelberg, and
consent
to medical care and any other needs of the minor child;
3.
That, in the interim, the Respondent’s parental rights and
responsibilities to have contact with
the minor child,
A[…]
G[…]
in terms of Section
28 of the Children’s Act, be restricted to:
3.1
Daily telephonic between 17h00 and 20h00;
3.2
Contact every Saturday and Sunday in Heidelberg from 08h00 until
17h00, the Respondent to collect
and return the child to the
Applicants’ residence;
3.3
Access and contact on any other agreed upon dates subject to the
child’s health and well-being.
The Respondent is to collect the
chil from the Applicants’ Residence and return the child to the
Applicants’ residence”.
4.
An order instructing the Office of the Family Advocate in
Bloemfontein, (alternatively Johannesburg)
and Ms. Teresa
Scholtemeyer, a forensic and councelling (sic) psychologist, with
HSPCA number PS0066907, (further alternatively
Sarie Nell, a social
worker in private practice) to urgently carry out an investigation in
terms of Section 50 into the parties’
parental rights and
responsibilities and to make recommendations for Parental Plan
amendments, which includes holiday contact structures,
and any other
order which the Honourable Court may make in terms of any other
provision of the Children’s Act in terms of
Section 46(1)(j)
and urgently investigate and report on the below mentioned issues
identified in paragraphs 5.1 to 5.5;
5.
That the abovementioned interim orders are pending finalization of an
investigation and reports
by the Office of the Family Advocate and an
investigation and reports by Ms. Teresa Scholtemeyer (or the
alternatively appointed
qualified professional) (“the
reports”), concerning the following:
5.1
Whether it is in the best interest of the minor child to remain and
be primary resident with the
Respondent in Bloemfontein;
5.2
Whether it is in the best interest of the child to live with the
Respondent and the Respondent’s
husband, Mr. J[…] G[…]
L[…];
5.3
Whether it is in the best interest of the child to primarily reside
with the Respondent and that
she should provide primary care to the
minor child;
5.4
Whether it is in the best interest of the child to permanently live
with the First Applicant,
and Second and Third Applicants during the
periods that the First Applicant is abroad;
5.5
Provide recommendations if it is in the child’s best interests
that the First, Second and
Third Applicants be the primary caregiver
of the child.
6.
That the Respondent’s consent as co-guardian of the minor child
be dispensed with should
she refuse or fail to sign the consent
letter/s for the necessary professionals appointed to assess the
minor child;
7.
Either of the parties may approach this Court, on the same papers, as
may be amplified through
a Supplementary Affidavit, for a variation
or supplication of this Order, once the reports become available;
8.
A CHILD PROTECTION ORDER
, which includes the following
order(s):
a.
That Ms. Teresa Sholtemeyer,
alternatively
Sarie
Nell, (further alternatively a suitable qualified professional),
conduct a psychosocial investigation of both parties, which
includes
the Respondent’s calculated attempts to alienate the minor
child from the First Applicant and the Second and Third
Applicants
and such report be provided to the Honourable Court,
alternatively
that the parties be ordered to participate in a professional
assessment/s with a clinical psychologist;
b.
That Ms. Teresa Scholtemeyer,
(
alternatively
Sarie
Nell, further alternatively a suitable (sic) qualified professional),
conduct urgent social emotional assessment of A[…]
G[…],
including interactional analysis with parents, and a report be
provided to the above Honourable Court,
alternatively
that the child be ordered to participate in a professional
assessment/s with a clinical psychologist;
c.
That the parties be ordered to
undergo specified skills development/training or treatment where this
is necessary for the protection
of well-being of the minor child,
which includes parental skills training, with either FAMSA, a
mediator appointed by SAAM,
alternatively
a suitably qualified
professional person;
9.
Amendment of the Parenting Plan in line with the above reports and
recommendations;
10.
That the Respondent is held in contempt of court in terms of
contravention of the Parenting Plan
and in terms of Section 35 of the
Children’s Act;
11.
Costs of the Application;
12.
Any other order which the above Honourable Court may make as upper
guardian of the minor child;
13.
Further and/or alternative relief.”
[4]
On granting the order, I stated in my
truncated reasons that it was based on the following:
4.1
The applicants failed to make a case for urgency for the drastic
relief they sought.
4.2
The applicants failed to show or present facts that they acted in the
best interests of the minor child, A[…] G[…].
4.3
What was clear from the evidence was the continuation of the acrimony
between the parties that had less to do with advancing
the interests
of the minor child.
[5]
According to the respondent, the application
was opposed because it lacked urgency, constituted a gross
abuse of
the court process, and was devoid of any merit as its sole purpose
was to intimidate the respondent. The respondent was
dissatisfied
that the application was filed and served on 8 August 2024, the
Thursday before the long weekend. She was to file
her answering
affidavit by 12h00 on 14 August 2024, and the matter was enrolled for
hearing on 16 August 2024. Consequently, the
respondent sought an
order dismissing the application with costs on an attorney and client
scale, including counsel’s costs
on scale A against all the
applicants and their attorneys, Messrs De Klerk, Vermaak and Partners
Incorporated
de bonis propriis
, jointly and severally, the one
paying, the other to be absolved.
[6]
The first applicant is the biological father
of the minor child, A[…] G[…]. Kampala Executive
Aviation employs him in Uganda and frequently in different locations
abroad. The second and third applicants are his parents, who
have
contact rights to the minor child in terms of a Parenting Plan that
was made an order of the court when a decree of divorce
was granted
on 5 October 2023. Both reside at 2[…] U[…] Street,
Heidelberg, Gauteng.
[7]
The first applicant and the respondent were
married on 26 September 2020. A[…] was born on 2[…]
D[…] 2020. The couple resided at 1[…] B[…]
Street, Heidelberg. On divorce, the parties agreed, and the court
awarded the respondent the minor child's physical placement and
primary residency. The second and third applicants were allowed
contact with A[…] every alternative weekend when the first
applicant was abroad, from Saturday at 09h00 until Sunday at
16h00.
[8]
In May 2021, when A[…] was five
months old, the first applicant was employed abroad as an aircraft
technician in Bangui (Africa), the Maldives, and Iraq. The
applicant’s prolonged absences while working abroad took their
toll on the family and did not foster a good relationship between him
and A[…]. According to the respondent, the marriage
broke down
irretrievably in 2022, and she instituted divorce proceedings in May
2023. On 5 September 2023, the parties signed a
deed of settlement
and a Parenting Plan. The respondent had A[…]’s primary
care subject to the terms of the parenting
plan. The divorce,
incorporating the deed of settlement and parenting plan, was granted
on 5 October 2023.
[9]
On 2 October 2023, the respondent started
her new employment in Pretoria, where A[…] was enrolled
in a
nursery school. The first applicant was displeased that the
respondent had travelled beyond a 50 km radius from Heidelberg
with
A[….] without his written permission, contrary to the
parenting plan. He then approached the Heidelberg Children’s
Court on an
ex parte basis
to prevent the respondent from
relocating until the matter was resolved. The relief granted reads as
follows:
“
1.
That the 1
st
Applicant’s non-compliance with the forms, time periods and
service requirements of the Rules of the above Honourable Court
be
condoned, and that the Application be heard on an ex parte basis in
terms of the Magistrate’s Court Rule 55(4)(b);
2.
That the Respondent be ordered to attend court proceedings on the
return date to be determined by the presiding
officer;
3.
That the Respondent’s parental rights and responsibilities to
have contact with A[…] G[…]
be restricted to contact
under supervision of any of the Applicant,
alternatively
unsupervised contact during weekends within the jurisdiction of the
above Honourable Court, in terms of Section 28(1)(b), and in
compliance with the Parenting Plan which is made an order of Court;
4.
An interim order in terms of Section 23(1) granting the 2
nd
and 3
rd
Applicants’ right of care and contact in
respect of the minor child, applicable during period when the 1
st
Applicant is working abroad;
5.
Issuing of an interim and auxiliary relief in this matter as
contemplated in Section 45(1), prohibiting the
Respondent or any
other person from removing the minor child from the care of the 1
st
Applicant, alternatively 2
nd
and 3
rd
Applicants
for the period while 1
st
Applicant is abroad, in terms of
Section 48(1)(a), and prohibiting the Respondent or any other person
from removing the minor child
from the jurisdiction of the above
Honourable Court;
6.
Issuing of an interdict and auxiliary relief in this matter as
contemplated in Section 45(1) prohibiting contact
between the minor
child and Respondent’s “life partner”, Mr JG L[…],
and his family members, in terms
of Section 48(1)(a) and in terms of
the Parenting Plan which is made an order of Court;
7.
Further alternative to prayer 3 supra, that an order be granted that
the minor child remain in K[…]
school in Heidelberg and
resident inn Heidelberg until finalization of the matter, and the 2
nd
and 3
rd
Applicants be authorised to take the minor child
to and from school, whereafter the Respondent is authorized to drop
off and collect
the minor child at the 2
nd
and 3
rd
Applicants’ residence before and after travelling to Pretoria
on a daily basis for her alleged new employment.
8. A
child protection order instructing the minor child, the 1
st
Applicant and Respondent to participate in a professional
assessment/s with a clinical psychologist;
9. A
child protection order instructing the Respondent to undergo specific
skills development, training, or treatment
where this necessary for
the protection or well-being of the minor child, which includes
parental skills training and possible
anger management training;
10. An
order instructing a person to carry out investigation in terms of
Section 50 and any other order which a Children’s
Act in terms
of Section 46(1)(j);
11. An
order to appoint a legal practitioner to represent the minor child at
court proceedings in terms of Section 29(6)(a)
in the event of the
Application to be opposed by the Respondent;
12.
Service of all documents/pleadings/court orders to be served
electronically on the Respondent at
m[...]@gmail.com
;
13. Any
other order which the Children’s Court may in terms of any
other provision of the Act in terms of Section
46(1)(k).”
[10]
The respondent approached the Johannesburg High
Court on an urgent basis and, on 20 October 2024, the court
granted
the following order:
“
1.
The application is heard as a matter of urgency in terms of rule
6(12).
2.
The operation of the court order granted in the Children’s
Curt, Heidelberg, on 13 October 2023 b the
Fourth respondent under
case number 14/1/4-53/2023 is suspended in its entirety, pending the
final determination of the relief
sought in Part B of the notice of
motion in this application.
3.
The operation of clauses 2.19, 2.35.22, 4.1.5, 4.1.6, 6.2.6. 7.2,
7.5, 8.3, of the Parenting Plan dated 5 September
2023 and made an
order of court by the Regional Court, Heidelberg, under case number
GP/HBG/RC-64/2023 on 5 October 2023 is suspended,
pending the final
determination of the relief sought in Part B of the notice of motion
in this application.
4.
The orders granted in 2 and 3 above will operate as an interim order
with immediate effect.
5.
In respect of the first, second and third respondent’s
conditional counter-application and the lack of
any urgency
accompanying same, including the respondent’s failure to
incorporate a prayer and/or request that the conditional
counter-application be heard as one of urgency in terms of rule
6(12), the enrolment thereof as an urgent application is refused.
6.
The first, second and third respondents, jointly and severally, the
one paying the other to be absolved, are
ordered to pay the costs of
Part A of the urgent application, as well as all costs pertaining to
the hearing in the urgent court
on 20 October 2023, on an attorney
and client scale.”
[11]
Some of the clauses in the parenting plan that were set aside by the
court related to the respondent not
being allowed to relocate to
Pretoria together with A[…], or even to travel beyond a radius
of 50km from Heidelberg without
the first applicant’s prior
consent. The respondent was not permitted to expose A[…] to
her current husband, Mr L[…],
let alone cohabitate with him
unless such relationship had endured for at least four months and the
first applicant had given his
approval.
[12]
The applicants opposed the respondent’s urgent application and,
in turn, instituted a conditional counter-application.
The
counter-application sought an order in the following terms:
“
1.
The primary residence of the minor child, A[…] G[…]
(“the child”), born on 2[…] D[…]
2020, with
immediate effect, is awarded to Second and Third respondents, pending
finalisation of an investigation and report by
the office of the
Family Advocate and an investigation and report by psychologist Ms
Terrassa Scholtemeyer (“the reports”)
concerning the
following:
1.1.1
whether it is in the best interest of the child to move with the
Applicant to Pretoria;
1.1.2
whether it is in the best interest of the child to live with the
applicant and the applicant’s boyfriend
Mr J[…] G[…]
L[…];
1.1.3
whether it is in the best interest of the child to live with the
Applicant;
1.1.4
whether it is in the best interest of the child to permanently live
with the Second and Third respondents;
1.1.5
who should be the primary care giver of the child, Second and Third
Respondents or the Applicant.
1.2 Any
party can approach this Court, on the same papers, as maybe amplified
through a supplementary affidavit, for
a variation of this order,
once the reports become available.
1.3 The
Office of the Family Advocate and Ms Teresa Scholtemeyer are ordered
and directed to investigate and report
on the above mentioned issues
identified in paragraphs 1.1.1 to 1.1.5.
1.4 The
Applicant is granted contact to the child, and as follows:
1.4.1 Daily
telephonic between 17h00 and 20h00;
1.4.2 Physical
contact every Saturday and Sunday between 8h00 and 17h00, in
Heidelberg. The Applicant will collect and return
the child;
1.4.3 Contact on
any other agreed upon dates. The Applicant will collect and return
the child;
2. Costs
of the counter-application, alternatively costs are reserved, further
alternatively costs in the cause.
3. Further
and/or alternative relief.”
[13]
The respondent correctly contended that the applicants sought to deny
her the right to have A[…] sleep
over with her and her new
family as they did in October 2023. A[…] was barely four years
of age and had only known the respondent
as the mother and sole-care
giver in her short life, an aspect which the applicants appeared to
have no regard for. They still
insisted on an order that the
respondent exercise her contact with A[…] only in Heidelberg,
conduct which was apparently
facetious and demonstrative of malicious
intent. The first applicant acknowledged the acrimonious relationship
between himself
and the respondent. The papers clearly show his
attempt to control the respondent’s life and that the
application is more
about the acrimonious relationship between the
parties than the minor child's best interests.
[14]
The applicants aver that the relief sought in the Johannesburg High
Court application was complied with,
and the application was
therefore moot. The respondent correctly pointed out that the
applicants’ conditional counter-application
remained pending in
the High Court, Johannesburg, under case number 106547/2023. The
court order declined to enroll the matter
as an urgent application
but remained extant. The parties in the counter-application were the
same as in the present matter, and
the relief sought in the
counter-application is substantially the same as the present relief
in paragraphs 2,3 and 4 of the notice
of motion. As such, the matter
remains
lis
pendens.
[15]
In May 2024, the first applicant launched a Form 2
Children’s Court application in the Pretoria Children’s
Court, which was set down on 27 August 2024. The first applicant
withdrew the application on 6 August 2024 and tendered no costs.
A
further appointment was scheduled by the Family Advocate,
Johannesburg, on 13 November 2024.
[16]
Towards the end of May 2023, the respondent
started a relationship with JG L[…] from Pretoria, and
the
parties engaged with each other in December 2023 before their
marriage on 19 July 2024. She gave birth to a baby boy on 2[…]
A[…] 2024. His employer promoted her husband, which
necessitated their relocation to Bloemfontein. On 30 July 2024, she
caused a letter to be addressed to the first applicant’s
attorneys, informing them that her husband was transferred to the
company’s Bloemfontein branch to commence employment on 1
August 2024. Furthermore, the respondent, due to the applicant’s
previous attempts of assault, would only disclose her current address
to the Family Advocate’s offices until their investigation
was
complete for fear of exposing her family to the applicant’s
erratic behavior. However, the applicants would have access
to A[…].
[17]
On Friday, 2 August 2024, the first applicant
collected A[…] from the K[…] e[…] B[…]
Kampus in Bloemfontein for the weekend. He was aggrieved that his
contact with the minor child was delayed and that he now had
to
travel longer distances. On 5 August 2024, he instructed his
attorneys to launch this application on an urgent basis.
[18]
The grounds advanced for urgency are the
respondent’s sudden relocation to Bloemfontein, which created
a
scenario in which he had to start all over again. The “
sudden
further drastic change imposed on A[…] with the relocation is
a major cause of concern for me.”
If he enrolled this
matter on the ordinary roll, the first applicant opined, it would
take considerable time before a hearing date
is allocated, and A[…]
would pay the price. He did not know where and with whom she stayed
and her living conditions. He
knew little about her school and
implored the court to hear the matter as urgent as he verily believed
that she needed treatment
or therapy.
[19]
The first applicant had, through the period until the granting of the
divorce order, conceded and accepted
that it was in the best
interests of Av[…] that her primary residence be awarded to
the respondent. Hardly a few days after
the order was granted, the
first applicant approached the children’s court to have the
right of care and contact of the minor
child granted to the second
and third applicants. The applicants wish to usurp the respondent’s
role as mother and primary
caregiver of A[…] without concern
for the latter’s best interests. It is also clear that the
first applicant wants
to control the respondent despite the divorce
having been finalised. It is also evident that this application and
the applicants’
other attempts at approaching the courts for
the same relief constitute a gross abuse of the court processes.
Their application
is not urgent, nor have the applicants presented
cogent evidence that they were acting in the best interests of the
minor child,
A[…]. What is clear is the acrimony between the
parties, which has nothing to do with the advancement of A[…]’s
best interests. The application was devoid of merit and stood to be
dismissed.
[20]
These are my reasons.
JJ
MHLAMBI, J
APPEARANCES:
On
behalf of the Applicant
Adv
S. Kelly
Instructed
by:
Shardelow
Smith Attorneys
132
Walter Sisulu Road
Gardenia
Park
BLOEMFONTEIN
On
behalf of the Respondent
Adv
HP West
Instructed
by:
PH
Attorneys
35
Magraaff Street
Westdene
BLOEMFONTEIN