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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 3893/2022
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE J UDGES: YES/NO
(3) REVISED .
DATE : 27/01/2025
SIGNATURE:
In the matter between:
R[...] B[...] Applicant
And
E[...] B[...] Respondent
Delivered : This judgment is handed down electronically by circulation to the parties
through their legal representatives’ email addresses. The date for the hand -down is
deemed to be 27 January 2025.
JUDGMENT
MAKOTI AJ
Introduction
[1] Care and parental rights to the parties minor child (who is 4 years old) are at
issue in this application. He was born on 31 May 2020 and due to turn five in a few
months. Both the parties were residing in the area of Thabazimbi when they were
together and even after they separation as husband and wife, a town in which they
have stayed as a married couple. Their marriage has reached turbulence and the
parties are engaged in divorce proceedings. This affects their minor child’s care and
contact.
[2] Primary care for the minor child is at issue. The parties do not agree on what
should be the appropriate structure for the care of the minor child. While they have
obtained a report of the Family Advocate, the applicant wants the current
arrangement to be mai ntained and that a psychologist be appointed to assess the
child. The respondent is not opposed to the appointment of a psychologist, but does
not agree to contribute to the costs to be occasioned thereby.
[3] This application was first before court on 12 May 2022 as an urgent
application. On that occasion an interim court order was granted by Phatudi J (as he
was then) in terms of which the parties were accorded equal parental rights. I deem
it unnecessary to rehash the full terms of the court order, save to mention that in
terms of paragraph 4 thereof the order was to operate pending an investigation and
the production of a report by the Family Advocate. The matter was again before
court on 11 July 2023 where another court order was granted by Kganyago J.
[4] On the terms of the order by Phatudi J any of the parties could approach court
for a fresh determination once a report by the Family Advocate was obtained. Before
that could happen, however, the parties reached their own agreement to amend the
order . They agreed that each of them would stay with the minor child for a week,
from Friday 17H00 until Friday of the following week at the same time.
Family Advocate’s report
[5] A report by the Family Advocate was submitted on 24 January 2024. In the
report the Family Advocate has made the following findings inter alia that:
[5.1] The status quo was not in the best interests of the minor child;
[5.2] With the minor child goi ng to Grade RR in 2025, his absence for two
weeks from his school for a period of two weeks in a months is affecting him
and, as a result, the child was struggling to make friends at school;
[5.3] It had become impractical to maintain the status quo as th e parties
were now residing about 150 kilometres apart;
[5.4] The Applicant lacked support system as he was living alone and that it
posed challenges for the minor child’s safety on the occasions when the
Applicant is called to work on emergency basis.
[6] Based on the contents and recommendations from the Family Advocate’s
report, the parties have returned to court still being in disagreement with regard to
the primary care of their minor child. The respondent seeks variation or amendment
of the court order and the inter partes agreement. In pith, she now wants an order
from this court that aligns with the best interests of the minor child. The applicant is
opposed to it and, as indicated, wants an appointment of a psychologist to further
assess the mi nor child.
Legal principles
[7] Care and contact between parent(s) and minor children is an emotive subject.
However, it is a duty of the court to transcend over the emotional issues in order to
properly look after the interests of the minor child. A co urt achieves this by
considering expert report(s) before it, including a report composed by the Family
Advocate. Importantly, the court does not merely ‘rubber stamp’ the findings and
recommendations of any of the reports before it.
[8] In Shazwin v Laufe r1 the duty of the court dealing with a case for care of
minor child was explained thus:
“In view of the circumstances of this case, I think it necessary to make a few
comments on the duty of a Court, sitting as upper -guardian of minor children,
when it h as to resolve a dispute concerning custody. To the Court, as upper -
guardian, the problem of custody is a somewhat singular subject, in which
there is substantially one norm to applied, namely the predominant interests
of the child.”
[9] This accords with the provisions of section 28 of the Constitution which
provides that the interests of minor children, being a vulnerable group, are
paramount.2 This important constitutional principle of the best interests of minor
children has also found legislative expr ession in section 9 of the Children’s Act.3
[10] The respondent contends that because of the change in circumstances of the
minor child, who will be moving into a different grade at school, there is need to
ensure better stability in his care. Under the current situation the minor child is
enrolled in two grades at two schools, taking into account that the respondent has
relocated and is staying in Brits in the North West Province. The submissions of the
respondent that the minor child’s interest are not served by the current situation are
supported by the Family Advocate, who expressed concern about the impact of the
status quo on the minor child.
[11] The important part of the report is the impracticality of maintaining the status
quo, given the change in residency and schooling for the minor child . Also, having
consulted the parties as well, the Family Advocate recorded that they were both
1 Shawzin v Laufer 1968 (4) SA 657 (AD) 662G -H.
2 Section 28(1) of the Constitution.
3 Act 38 of 2005.
concerned that ‘… the child was not coping due to the instability that comes with the
shared residence’ . In comparison, it has been noted that there is better st ability for
the minor child if he was with the respondent as she had support system, having a
new partner and a helper to assist with the child’s care. This was in accordance with
a report by the appointed Family Councillor, one Mr Zondi.
[12] It is impor tant and our courts have consistently held that there is need for
stability in children’s lives. Our jurisprudence recognises the importance of
maintaining consistency in young children’s lives.4 In this case one wonders whether
it is helpful to the minor child’s stability to be attending the same grade at two
different schools. In Mekgwe and Letlatsa5 the Court expressed that children's
existing environment sh ould not readily be disturbed, and any unnecessary moves
should be discouraged and avoided on the grounds of security and stability. Court
also universally recognise that a stable routine is considered to be in the interests of
children, especially those w ho are still of a tender age.6
[13] Though sitting at opposing ends, the parties contend that they are concerned
with what is in the best interests of the minor child. Given the history of this matter, I
am not convinced that they are truly pursuing the i nterests of the minor child. It is
important what the Family Advocate has stated. And that should lead to some
changes in how the child is brought up. The fact that he is finding it difficult to sustain
friendships is a factor that should not escape this C ourt’s attention.
[14] The earlier order of Phatudi J read in part as follows:
“4. Pending the investigation and report by the Family Advocate, the
following interim order is made:
4.1 Both parties shall retain full parental responsibilities and righ t in respect
of the minor child, namely […] born 31 May 2020, (hereinafter referred to as
4 AS v CHPS 2022 JDR 0623 (GJ).
5 Mekgwe v Letlatsa 2018 JDR 1959 (FB) p 30.
6 JO v AO 2017 JDR 1691 (GJ).
“the minor child”) as provided for in section 18 of the Children’s Act No. 38 of
2005 (hereinafter referred to as “the Act”).
…
4.2.1 the minor child’s primary care and residence shall vest with the parties
jointly.”
[15] A report of the Family Advocate has been obtained, which the applicant is not
happy with. That may be so but there are certain facts which cannot be gainsaid,
including the minor child’s progression at school. It seem to me to be in the best
interests of the minor child to have stability, not only in the home situation, but at
school too. The current situation has to be disturbed to an extent.
[16] The alteration of the status quo should still serve the best interests of the
minor child in that the minor child must maintain contact with both parents. In LKM
and Another v NFM and Others7 where the Court held –
“This is, however no t the end of the matter before me. The practical reality is
even if the applicants are compelled to issue an application in the children's
Court for the suspension of the order granted on 25 April 2022, the immediate
question is whether the order as it rel ates to the first respondent's contact with
her child for 29 and 30 April 2022 should proceed as ordered by the children's
Court. Although the applicants' did not make out a case that the first
respondent poses any threat to the minor, I have to consider t hat, be it
because of the first respondent's voluntary absence or the applicants denying
her contact, the last contact that the first respondent had with her child was
during November 2021. It would, however, be in the minor child’s best interest
to resume having contact with her biological mother as soon as possible. This
being said, it would be in the best interest of the child to ensure that the first
contact is not overwhelming but gradually phased in.”
[17] The same was expressed in ND v PT8 in which the Court held amongst others
that:
7 (16859/22) [2022] ZAGPPHC 269 (29 April 2022) para 13.
“The absence of contact and the resultant failure to establish a relationship
between a young child and one of the parents is not in the best interests of a
child. Additionally, the longer a young child is denied such contact the more
difficult it becomes to establish a relationship between the relevant parent and
the child.”
[18] At issue before me was only the question of primary residence of the minor
child which, as I have indicated, has to be altered as it is no longer in the best
interests of the minor child to maintain the current status quo . The applicant wants
an investigation by an expert psychologis t and the respondent is not averse to it.
Thus, the changes will sustain pending an investigation and reporting by a
psychologist. The remainder of the orders granted by Phatudi J need not be
disturbed.
[19] Both parties want costs in the event of success . Due to the nature of the
matter and in an attempt to foster cooperation between the parties, I am not inclined
to award costs to any of the parties in this matter.
Order
[20] I make the following order:
“1. Pending an investigation and submission of a report by a psychologist,
the primary care and residence of the minor child shall be with the respondent.
2. The applicants shall have reasonable access and contact with the
minor child, as follows:
2.1 on alternate weekends;
8 (25792/2020) [2022] ZAGPJHC 13 (18 January 2022).
2.2 on alternate school holidays;
2.3 during fathers’ day and on the applicant’s birthday provided that those
days fall on a weekend.
3. No order as to costs.”
M. Z. MAKOTI
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION
APPEARANCES:
FOR APPLICANT : ADV CJ MANERWECK
SMIT VOSLOO ATTORNEYS
c/o AH BURGER ATTORNEYS INC
POLOKWANE
FOR FIRST RESPONDENT : ADV S NIEMANN
WYNAND DU PLESSIS ATTORNEYS
c/o KHAMPHERBEEK, TWINE &
POGRUND ATTORNEYS,
POLOKWANE
DATE HEARD: 11 SEPTEMBER 2024
DATE DELIVERED: 27 JANUARY 2025