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[1995] ZASCA 71
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Baars v Scott (556/93) [1995] ZASCA 71; [1995] 4 All SA 392 (AD) (31 May 1995)
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Certain personal/private details of parties or witnesses have
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Case
number 556/93
IN THE
SUPREME COURT OP SOUTH AFRICA
(APPELLATE
DIVISION)
In the
matter between:
BARRY
BAARS
Appellant
and
JEANETTE
ELAINE SCOTT
Respondent
CORAM
:
CORBETT CJ et E M GROSSKOPF,
F
H GROSSKOPF, HOWIE et
MARAIS
JJA
DATE OF
HEARING : 16 MAY 1995
DATE OF
JUDGMENT : 31 MAY 1995
JUDGMENT
HOWIE
JA/
2
HOWIE JA :
This
is an appeal against the decision of
Spoelstra
J in the Witwatersrand Local Division dismissing
appellant's
application for the grant of access to his
minor
illegitimate son. Respondent is the boy's mother.
The
decision of the Court a quo is reported as
B
v S
1993 (2) SA 211
(W). The appeal is with leave of that Court.
In
support of the appeal three main submissions were
advanced.
I shall deal with them one by one. The first
was
that, as a matter of law, the father of an illegitimate
child
has an inherent right of access, which right vests in
him
by reason of paternity alone. The Court below held (at
214
B-F) that appellant had no such right.
As
this first submission was not dependent on the
facts I shall
refer to them only later.
The
thrust of the present argument was this. The
relevant
common law writers are silent concerning access by
a
father to his illegitimate child but this cannot mean
3
that
in the times in which they wrote, a paternal right of
access
to an illegitimate child was not recognised.
However,
even if no such right was acknowledged then the
Court
should now, on the basis of justice and equity,
declare
the existence of that right in order to ensure that
the
father of an illegitimate child stood, as regards
access,
in no position inferior to that of the father of a
legitimate
child.
In
contending that the supposed right could well have
existed
in Roman-Dutch law, appellant's counsel pointed out
that,
contrary to the position in Roman law, where an
illegitimate
child was regarded as having no father (see,
for
example.
Institutes
,
3.5.4), in Roman-Dutch law the
father's
existence and identity qua father were undoubtedly
recognised.
He was for instance, burdened with the duty of
support
and he was, like any father, barred from marrying
within
certain degrees of affinity. In addition, said
counsel,
it was consistent with some measure of parental
4
authority
on the father's part that, according to Brouwer,
De
Jure Connubiorum
.
vol. 1, p 32, para 15, his consent was
required
for the marriage of his illegitimate child.
None
of those three features assists appellant.
Access,
like custody, is an incident of parental authority:
see
Boberg,
The Law of
Persons and the Family
459 - 460 and
cases cited
there. Consequently, if access is the father's
entitlement
as a matter of inherent legal right it can only
stem
from his parental authority. The duty of support and the marriage
impediment in no measure imply the existence
of
any parental authority from which the supposed right of
access
could have been derived. As for Brouwer, at 39 - 40
of
the volume referred to (as translated by P van Warmelo
and
F J Bosman, 1 st ed) the author, commenting on the
paragraph
relied on by appellant's counsel, was discussing
a
requirement of the Political Ordinance of Zeeland that
consent
to marriage be given by the "ouers". Having posed
the
question whether this included the natural father of an
5
illegitimate
child, he offered the answer that while in
natural
law it would, in civil law such a father was
regarded
as "onseker" and he was therefore of the view that
"daar
nie so sterk nadruk op sy toestemming gelê moet word
nie".
This authority therefore provides no support of any
substance
for counsel's suggestion.
The
fact is that in Roman-Dutch law an illegitimate
child
fell under the parental authority, and thus the
guardianship
and custody, of its mother; the father had no
such
authority: Van Leeuwen,
Het
Roomsch Hollandsch Recht
1.7.4;
Van Bynkershoek,
Ouaestiones
Juris Privati
3.11;
Van der Linden,
Kooomans
Handboek
1.4.2. To
acquire
parental
authority he had either to marry or be married to
the
child's mother or he had to adopt the child: Voet,
Commentaries
ad Pandectas
1.6.4.
In
the light of those authorities it cannot, in my
view,
be said that the common law is silent - in the sense
of
conveying nothing - as regards access by a father to his
6
illegitimate
child. The most that can be said in support
of
appellant's argument is that there is nothing express on
the
subject. However, the very clear implication in what
is
indeed said is that, having no parental authority, such
a
father was bereft of the very power from which any
supposed
inherent right of access could have originated ex
lege.
That
was the common law that was received into this
country
and which must still apply unless it can be said
that
it has been altered in any significant way by judicial
exposition
since.
A
study of the relevant South African case law
concerning
access by a father to his illegitimate child
shows the
following.
Access
was granted by the court in
Wilson
v Ely
1914 WR 34
and
Matthews v Haswari
1937 WLD 110
but appellant's
counsel
understandably disavowed reliance on those cases.
They
do not constitute persuasive or even helpful
7
precedents
in regard to the present question. In
Wilson
,
access was granted on the
erroneous basis that it was, in
effect,
in return for the payment of maintenance. In
Matthews
,
the court must, one infers, have thought access
to
be in the interests of the child, but the law is not
discussed
in the judgment.
In
Docrat v Bhayat
1932 TPD 125
the father applied for
custody,
the mother having died. The child in question was
born
of their Muslim marriage. In the course of his
judgment
De Wet J remarked (at 127-8) that the father had
"no
locus standi at all" as far as custody was concerned,
that
he was "not entitled to the custody of the child" and
that
he had "no legal claim to the child". These
statements
were not supported by reference to any authority
but
from what I have already said they were in line with
the
common law and would also have applied to the matter of
access.
That the court meant that the father had no claim
ex
lege is clear from the fact that it went on to consider
8
granting
custody to the father nevertheless but came to the
conclusion,
on the facts, that he had failed to discharge
the
onus of showing that the child's interests would be
enhanced
by its removal from the apparently satisfactory
custody
then being exercised by the mother's sister and her
husband.
Douglas
v Mayers
1987 (1) SA
910
(ZH) was a case in
which
the father sought access as a matter of inherent
right.
Reviewing the law on the present point, the court
referred
in its judgment to Boberg, op. cit., at 333-4,
Spiro,
The Law of Parent and
Child
, 3rd ed., at
425-6 and
to the cases of
Wilson
,
Matthews
and
Docrat
.
Reference was
also made
to the case of
Davids
v Davids
1914 WR 142
in
which, apparently,
(the report is not available to me) the best interests of the child
led to the award of custody to
the
father and access to the mother. The conclusion
reached
by Muchechetere J on the strength of this survey
was
that the father had no inherent right to access but did
9
have
the right to claim, and be granted, access if it was
in
the child's best interests (see 914 D-E).
In
F v L and Another
1987 (4) SA 525
(W) (the same
judgment
is reported as
D v L
and Another
in
1990
(1) SA
894
(W)) the
father applied for the appointment of a
curator-ad-litem
preparatory to his suing for a declarator
inter
alia that he had an inherent right of access to his
child.
The best interests of the child were not referred
to
in the papers or in argument and were therefore
irrelevant
to the point raised. Harms J relied on common
law
and case law, inter alia the decision in
Docrat's
case,
for his conclusion
that because the father could not
acquire
parental authority simply by reason of paternity,
he
had "no prima facie right of access". The
Douglas
case
was not mentioned.
F
v B
1988 (3) SA 948
(D) takes the matter no further
because
it was decided on the basis of both counsel's
acceptance
of the conclusion in
Douglas
as correct.
10
B
v P
1991 (4) SA 113
(T) was an appeal against the
decision
of a single Judge dismissing the father's access
application.
His case was that he had a right to access (what is referred to in
the instant case as an inherent
right)
and also that such access was in the best interests
of
his child. Following the decision
in
F
v L
, it was held
(at
114E) that the right contended for did not exist. The
court
then proceeded to state (at 115A) that a father could
nonetheless
obtain an order for access "in certain
circumstances".
What those circumstances were emerged
later
in the judgment where (at 117F) it was explained that
it
was for the father to show that access would be in the
best
interests of the child (the paramount consideration)
and
would not unduly interfere with the mother's right of
custody.
The
next case to be considered is that of
Van
Erk v
Holmer
1992 (2) SA 636
(W). The reported decision in that
matter
constitutes the cornerstone of appellant's case.
11
There, as
recorded at 636I - 637C, an opposed access application was referred
to the Family Advocate for
investigation
and recommendation. The latter duly
recommended
that access in certain defined respects be
granted
to the father. This recommendation was accepted by
the court (Van Zyl J) and the parties then settled the
matter on the basis that the father be accorded reasonable
access. Their agreement was made an order of court.
Despite disposal of the case in that way the parties then
requested the court to furnish its reasons for accepting
the Family Advocate's recommendation. In this regard the
judgment reads (at 637 B-C) as follows:
"Because
of the importance of the matter, however, the parties requested that
reasons should be furnished for
the
Court's accepting the Family Advocate's
recommendation,
particularly in view of the suggestion
put
forward that, despite the existence of precedents
to
the contrary, the time might have arrived for the
recognition
by our Courts of an inherent right of
access
by a natural father to his illegitimate child.
Counsel
for both parties and also Mr W Schroeder of
the
South African Law Commission have in the meantime
submitted
various sources dealing with this vexed
12
question."
Van
Zyl J acceded to this request. In his reasons he
undertook
a careful review of the various common law
sources,
the cases discussed above and a number of articles
by
South African academic writers for or against the
inherent
right for which appellant contends. The learned
Judge
then surveyed relevant legal provisions and writings
in
England, Australia, Canada and the United States of
America
and observed (at 646J - 647A) that, save for one instance (the
Australian Family Law Council's suggestion
that
an inherent right not be recognised) the question of
the
existence of the alleged right had not arisen for
consideration.
Reverting to the South African sources and
cases,
he proceeded to set out his reasons for the eventual
conclusion
(at 649I - 650A) that the time had arrived for
the
recognition by the courts of the inherent right in
issue,
which recognition was justified by the precepts of
justice,
equity and reasonableness and by the demands of
13
public
policy.
In
S v S
1993 (2) SA 200
(W) and in the unreported
case
to which I shall refer as
A
v D
(SECLD) case
1456/92,
in which
judgment was given on 3 March 1995, the courts concerned declined to
follow
Van Erk
and applied
B v P
,
supra.
Before
discussing the reasons stated by Van Zyl J in
Van
Erk
it is necessary
to analyse the circumstances in
which they were given.
Nothing
in the report of the case suggests that the
present
question of law was ever a contested issue
requiring
decision. In the discussion of the facts at 637
D-G
and 650 A-C and the court's references to the interests
of
the child, the mother's opposition is stated to have
been
based on the assertion that the father ought not to
have
access, not that he was disentitled to access as a
matter
of law. The fact that the case was referred for the investigation and
recommendation of the Family Advocate is
14
consistent
with the real issue being whether access was
appropriate
and not whether access was the father's inherent legal right. Be that
as it may, even if the
Family
Advocate did contend for that right, consideration
of
the recommendation by the court did not involve the
judicial
process of adjudication involving the hearing of
argument
on both sides and the making of a considered
decision
disposing, either by way of a judgment or a
ruling,
of the issues thus presented. That being so, and
apart
from the fact that no reasons were asked for at that
stage,
the court's duty to consider and decide upon the
acceptability
of the report did not encompass the
obligation
to furnish reasons for acceptance. Reasons for rejection might have
been given, if at all necessary, had
the
case not been settled and had it proceeded to judgment
but
that is quite another matter. Moreover, if, as was
recommended,
access by the father to the child was
desirable,
it could only have been because that was in the
15
best
interests of the child. And if it was in the best
interests
of the child then, on the strength of the cases
which
preceded
Van Erk
,
the father was entitled to request
and
be granted access in any event. Accordingly, had it
been
necessary for the court to hear debate and to give a
considered
decision for accepting the Family Advocate's
recommendation
that decision would, on the question of an
inherent right,
have been obiter.
To
sum up the position that obtained before the
settlement,
therefore, it was that any judgment on the
present
point would have been obiter but that no judgment
or
ruling was either required in law or given.
After
the order was made incorporating the settlement,
there
was no longer any lis between the parties and the Judge's work was
finally done. In the circumstances the
court
was asked to give its reasons on the present legal
question
as if it was then an issue between the parties and as if the court
was properly seized of it, neither of which
16
was
so. And these were not reasons, reserved at an earlier
stage,
which had to be furnished for the purposes of
possible
further litigation or an appeal. Further
proceedings
had been excluded by the settlement.
Accepting
that his reasons were given with the genuine
and
sincere commitment and sense of obligation on the part
of
the learned Judge not only to assist the parties in regard to
possible future disputes between them as to
access,
but also to lay down the law on what is a sensitive
and
controversial subject, the fact is that the reasons
really
comprise no more than an opinion. From what has
already
been said they did not, and could not, constitute a judgment
disposing of an issue between the litigants.
However,
because of the attention which the present
point
has attracted in recent years, I shall consider the
reasons
as if they did amount to a judgment on a live issue
between
the parties.
The
reasons appear at 647B - 649I and the essentials
17
may
be summarised as follows. Just because the common law
says
nothing about a father's right of access to his
illegitimate
child, this does not warrant the conclusion
that
such right cannot exist. Access should not always or
necessarily
be regarded as an incident of parental
authority
- it can be granted when it is in the child's
best
interests and it cannot be said that such grant
confers
parental authority. Because the existence of an
inherent
access right is excluded by neither the common law
nor
legislation it is the obligation of the courts to
decide
the present issue in accordance with the precepts
referred
to above. The interests of the child do not
justify
an access right being dependent on whether it is
legitimate
or illegitimate seeing that extra-marital
cohabitation is more
prevalent nowadays and less
disapproved
of than in earlier times. Emphasis placed in
judgments
and writings upon the child's rights rather than those of the parents
justifies the approach that the child
18
should
have the chance to form a lasting relationship with
both
parents whether or not one or other is married to a
third
party. Just as no distinction is warranted between
legitimate
and illegitimate children, so no distinction
should
be drawn between the rights of their respective
fathers.
Finally, it is a gross injustice that a father is compelled to pay
maintenance when he is not entitled as of
right
to access and because of the reciprocal benefits of
the
father-child bond, he should have this right unless it
is
clearly not in the best interests of the child.
It
seems to me that the conclusive legal answer to all
these
contentions is simply this. As I have explained, the
common,
law does indeed provide clearly enough what a
father's
position is as regards access in a relationship
like
the present, even if what is conveyed is a matter of
necessary
implication and not express statement. In South
Africa
that law was been applied - correctly, in my view -
in
F v L
and
B v P
,
supra. It follows that this is not a
19
topic
on which it is open to a court to take the approach
adopted
by Van Zyl J. If the law is sufficiently clear, as
I
consider it is, then the judicial function is to expound,
not
to legislate. 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.
It
may well be that most fathers of illegitimate
children
nowadays are concerned about the welfare of their
children
and committed to enhancing the latter's best
interests,
particularly where the children are born of a
so-called
live-in relationship between the parents. If
there
are sound sociological and policy reasons for
affording
such fathers an inherent access right, in
addition
to the right they already have to be granted
access
where it is in the best interests of their children,
then that
is a matter that can only be dealt with
20
legislatively.
Having
stated what the law is, I proceed to consider
to
what extent it currently discriminates unfairly against
the
father of an illegitimate child as was contended on
appellant's
behalf.
In
the first place the question arises as to how
appropriate
it is to talk of a parent having a legal right
at
all in the present context. Allied to that is the question whether
proceedings such as these are, like
ordinary
civil litigation, adversarial in nature and
whether an onus of
proof is involved. Considerable
guidance
is afforded by recent dicta in England in cases
involving
children born out of wedlock.
In
A v C
[1985] FLR
445
(CA) Ormrod LJ said the
following
at 455 E-H:
"(The
Judge a quo) took the point at an early stage in
the
judgment, when he came to deal with the law, that
it
was a mistake to talk, in relation to access, in
terms
of rights, and he was undoubtedly, in my
judgment,
correct in what he said. The word 'rights'
21
is
a highly confusing word which leads to a great deal of trouble if it
is used loosely, particularly when it
is
used loosely in a court of law. So far as access
to
a child is concerned, there are no rights in the sense in which
lawyers understand the word. It is a
matter
to be decided always entirely on the footing of
the
best interests of the child, either by agreement
between
the parties or by the court if there is no
agreement
... The first and paramount consideration
(is)
the welfare of the child, bearing in mind, of
course,
the wishes and feelings and so on of the
respective
parents and other people concerned with the
child,
but always bearing in mind that the decision
must
rest in terms of the best interests of the child,
having
taken all these other factors into account."
As regards
the observation by the judge a quo in that
case that
"(p)rima facie a parent should have access to his
child",
Ormrod LJ said at 456 A-B:
"I
would differ from that only to this extent: while
it
is a correct statement of the general practice, it
is
always a little dangerous in these cases where judges talk in terms
of presumption and burden of
proof.
It leads to many very false conclusions if it
is
pressed too far. It is simply a statement of
common
sense that in the ordinary way, as society
today
is constituted, both parents should be in
contact
with their children, even if they have parted.
It
is no more than that and I would deprecate any idea
that
there is a presumption either way in these
matters or an onus
either way."
22
These
statements, which are of just as much
application
in South Africa, were cited with approval in Re
KD
(a minor) (ward : termination of access)
[1988] 1 All ER
577
(HL) at 589 c-f.
In
the latter case the court of first instance refused
access
to the mother where her illegitimate child was in
the
satisfactory care of foster parents. The mother's
attempts
to have that result reversed failed both in the
Court
of Appeal and in the House of Lords. Concerning the
argument
that the mother had a legal right of access, which
should
be inhibited only if the Court were satisfied that
its
exercise would be adverse to the child's interests,
Lord
Oliver, with whose speech the other Law Lords agreed,
stated
(at 588 e-f) the essential concept in this regard as
being
that the natural bond and relationship between parent
and
child gives rise to universally recognised norms which
ought
not to be gratuitously interfered with unless the
welfare
of the child dictated doing so. Noting that the
23
word
"right" is used in a variety of senses, popular and
jurisprudential,
from a contractual right to a privilege to
an
essential liberty such as the so-called "right to work",
the
learned Law Lord said (at 588 g-j):
"Parenthood,
in most civilised societies, is generally
conceived
of as conferring on parents the exclusive
privilege
of ordering, within the family, the
upbringing
of children of tender age, with all that
that entails. That is
a privilege which, if
interfered
with without authority, would be protected by the courts, but it is a
privilege circumscribed by
many
limitations imposed both by the general law and,
where
the circumstances demand, by the courts or by
the
authorities on whom the legislature has imposed the duty of
supervising the welfare of children and
young
persons. When the jurisdiction of the court is invoked for the
protection of the child the parental
privileges
do not terminate. They do, however, become
immediately
subservient to the paramount consideration which the court has always
in mind, that is to say the
welfare
of the child. That is the basis of the
decision
of your Lordships House in J v C and 1 see
nothing
in R v UK which contradicts or casts any doubt
on that
decision or which calls now for any
reappraisal
of it by your Lordships. In particular,
the description of
those familial rights and
privileges
enjoyed by parents in relation to their
children
as 'fundamental' or 'basic' does nothing, in
my
judgment, to clarify either the nature or the
extent
of the concept which it is sought to describe."
24
At 590 c-f
Lord Oliver continued:
"...
I do not find it possible to conceive of any
Circumstances
which could occur in practice in which
the
paramount consideration of the welfare of the
child
would not indicate one way or the other whether access should be had
or should continue. Whatever the position of the parent
may be as a
matter of law, and
it
matters not whether he or she is described as
having
a 'right' in law or a 'claim' by the law of
nature
or as a matter of common sense, it is perfectly clear that any
'right' vested in him or her must yield
to
the dictates of the welfare of the child. If the
child's
welfare dictates that there be access, it adds
nothing
to say that the parent has also a right to
have
it subject to considerations of the child's
welfare.
If the child's welfare dictates that there
should
be no access, then it is equally fruitless to
ask
whether that is because there is no right to
access
or because the right is overborne by
considerations
of the child's welfare. For my part,
I
think that Arnold P's analysis in Hereford and
Worcester
CC v J A H places the emphasis perhaps too
much
on the necessity of finding a positive benefit to
the
child from parental access. As a general
proposition
a natural parent has a claim to access to
his
or her child to which the court will pay regard
and
it would not I think be inappropriate to describe
such a claim
as a 'right'. Equally, a normal
assumption
is, as Latey J observed to M v M (child :
access;
[1973] 2 All ER 81
at 88, that a child will
benefit
from continued contact with his natural
parent.
But both the 'right' and assumption will
always
be displaced if the interests of the child
indicate otherwise
..."
25
In the
same vein, at 591 e-f is the following passage:
"â
the parental rights or claims which undoubtedly
exist
and to which a proper regard must always be paid
both
by the court and by local authorities having the
care
of children are and must always be qualified by the consideration of
what is best for the welfare of
the
child whom it is the court's duty to protect."
The
dicta in these cases are clear and persuasive.
They
show that 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. (Cf
Dunscombe
v Willies
1982 (3) SA
311
(D) at 315 in fine; L. Kodilinye: "Is
26
access
the right of the parent or the right of the child?
A
Commonwealth view", International and Comparative Law
Quarterly
vol. 41, January 1992, 190; International
Convention
of the Rights of the Child, United Nations General Assembly
Resolution 44/25, 20 November 1989,
ratified
by South Africa on 29 January 1993).
The
importance of that conclusion lies not only in its
identification
of the person in whom any inherent right
truly
vests but also in its demonstration of the practical
reality
that the father of an illegitimate child is not
unfairly
discriminated against. It is true that the father
of
a legitimate child has a right of access at common law
(
Lecler
v Grossman
1939 WLD
41
at 44 and
Botes v
Daly and
Another
1976 (2) SA 215
(N) at 220 F-G), with which right
he
can confront the mother if she refuses access. But that
right
will be to no avail if for any reason she persists in
her
refusal. He will then have to go to court for an order enforcing
access. If access is found to be adverse to the
27
child's
welfare, he will fail. By comparison, the father
of
an illegitimate child who considers access is in the
best
interests of the child can confront the mother with
the
contention that he should, on that ground, be granted
access.
If she refuses to concede that, he will have to go to court to obtain
an order granting him access. As in the
other
example, he will fail if access is not in the child's
best
interests. The difference between the respective
positions
of the two fathers is therefore not one of real
substance in
practice.
Then,
in so far as it was submitted that the father of
an
illegitimate child should be accorded an inherent access right on the
basis of justice, equity and public policy, it
is,
in the first place, significant that despite a thorough
comparative
survey of the relevant law of other countries
with
similar legal systems, appellant's counsel was unable
to
refer to any in which the right contended for has been
recognised
or granted. Secondly, the benefits of justice,
28
equity
and public policy are not only for fathers. They
extend
also to the mothers and children. It is difficult
to
see the fairness to the mother and child in a case where
the
father, whose contact with the mother has been little
more
than the act from which he derives his status, returns
many
years later and troublesomely insists on access to a
child
to whom he is a complete stranger. This may be a
rare
occurrence in fact but counsel has argued the
principle.
It is apposite here to note what Balcombe LJ said in
Re
H and another (minors) (adoption ; putative
father's
rights) (No 31
[1991]
2 All ER 185
(CA) . After
recounting
that United Kingdom legislation in 1987 and 1989
had
improved the lot of a father by removing certain
statutory
disabilities attaching to his legal position vis
à
vis his illegitimate child, the learned Lord Justice said
(at 189
a-d):
"The
method adopted was not to equate the father of a
child
born out of wedlock with the father of a legitimate child: it was to
give the putative (or
29
natural)
father the right to apply for an order giving him all the parental
rights and duties with respect to
the
child ... The reason why this method was adopted
was
because the position of the natural father can be
infinitely
variable; at the one end of the spectrum
his
connection with the child may be only the single act of intercourse
(possibly even rape) which led to conception : at the other
end of
the spectrum he may
have
played a full part in the child's life from birth
onwards,
only the formality of marriage to the mother
being
absent. Considerable social evils might have resulted if the father
at the bottom end of the
spectrum
had been automatically granted full parental
rights
and duties and so Parliament adopted the scheme
to which we
have referred above.
In
considering whether to make an order under ... the
(1987)
Act the court will have to take into account a
number
of factors, of which the following will
undoubtedly
be material (although there may well be
others,
as the list is not intended to be exhaustive) :
(1)
the degree of commitment which the father has
shown
towards the child; (2) the degree of attachment
which
exists between the father and the child; (3)
the
reasons of the father for applying for the order."
If the
parents of an illegitimate child cannot agree
that the
father's access will be in the best interests of
the child
and he is therefore compelled to go to court then
it seems
to me to be altogether just and equitable that he
should
have to canvass, inter alia, the three points in the
30
above-quoted
passage in order to enable the court to
establish
what is best for the child's welfare. Should the
parent-child
relationship be one originating from their all
having
lived as a family (for example, within the context
of
a customary or religious marriage not recognised by
civil
law), the advantages to the child of paternal access
should,
in the vast majority of such cases, be self-evident
and
augur well for a favourable finding on the three
aspects
listed in
Re H
supra.
Finally,
whilst obviously not authoritative, there are
the
recommendations by the South African Law Commission in its report to
the Minister of Justice dated July 1994. The
report,
compiled after thorough research and investigation
over
several years on the present issue, recommends, not
the
recognition or grant of an inherent right, but the
confirmation
of the father's right to apply to court for
the
grant of access where such access is in the best
interests of
the child.
31
In
summary, therefore, 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. In both these respects the law is
in
step with that in the leading foreign jurisdictions
referred
to in argument.
Appellant's
first submission therefore fails.
The
next submission can also be dealt with without reference to the
facts. It was that the court a quo
misdirected
itself in approaching the matter on the basis
(stated
in the reported judgment at 214G) that there was an
onus
on appellant to satisfy the court that there was "a
very
strong and compelling ground" to find that access
would
be in the best interests of his child.
In
regard to the matter of onus and the evidence it
required
of appellant, the learned Judge dealt with the
32
subject
pari passu with the question whether appellant had the inherent right
discussed above. On the subject of that
alleged right he considered that the court in
Van
Erk
had
erred, inter alia, in ignoring the stare decisis principle
and in not regarding itself as bound by the Full Bench
decision in
B v P
.
supra. Spoelstra J then said (at 214 D-
E) that the applicable principles were stated in
B
v P
at
115C
where a passage from the
Douglas
case, supra, was
cited. The learned Judge obviously
misconstrued the
judgment in
B
v P
as endorsing the
relevant passage in
Douglas
as correct in
all respects and so he adopted it and
quoted it with approval himself. That passage (at 914 D-E
of the
Douglas
case) deals with the matters of inherent
right and onus and reads as follows:
"From
the above, my conclusion is that there is no
inherent
right of access or custody for a father of a
minor
illegitimate child but the father, in the same way as other third
parties, has a right to claim and
will
be granted these if he can satisfy the Court that
it
is in the best interests of the child. The onus is
on
the applicant, in this case the father, to satisfy
33
the
Court on the matter and usually the Court will not
intervene
unless there is some very strong ground
compelling it to do
so."
In
B v P
,
however, Kirk-Cohen J (giving the judgment
of
the Full Bench) pointed out that it emerged quite
clearly
in what followed immediately upon the quoted
passage
in
Douglas
that the court in the latter case had
erroneously
derived the perceived need for very strong
compelling
grounds from what was said in
Calitz
v Calitz
1939 AD 56
at 64.
As
observed in
B v P
at
115
H-I,
Calitz
had nothing to
do with an
illegitimate child. It was concerned with
custody
by the father of a legitimate child in a situation
where
the parents were neither divorced nor judicially
separated.
In
Calitz
it was noted that in Scottish law the
father
of a legitimate child was entitled to custody during
the
subsistence of the marriage and would only be deprived of it by the
court, acting in effect as upper guardian, in exceptional
cases where
there was clear evidence of danger
34
to the
life, health or morals of the child. On the apparent assumption that
South African law was
substantially
the same on this aspect, this Court held
that,
in the absence of such factors in the case before it,
the
lower court had erred in depriving the father of
custody.
After
analysing
Calitz
and reviewing other case law
Kirk-Cohen
J concluded in
B v P
(at
117
A-C) that where the court acts as upper guardian it makes no
difference whether
the
child concerned is legitimate or illegitimate. For
that
reason, he said, the requirement in
Douglas
and
F v B
of
very strong compelling grounds was inapplicable. With
respect,
that conclusion is entirely correct.
It
follows that the Court a quo erred in misreading B
v
P
in this context and
in requiring appellant to show a
very
strong and compelling ground why he should have
access.
In
addition it seems to me to be necessary to lay down
35
that
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. Even where variation of an
existing
custody or access order is sought, and where it may well be
appropriate to cast an onus on an applicant,
the
litigation really involves a judicial investigation and
the
court can call evidence mero motu:
Shawzin
v Laufer
1968 (4) SA
657
(A) at 662G - 663B. A fortiori that is so in the "first
time" situation. And it matters not in this
regard
whether the child concerned is legitimate or
illegitimate.
Strong
support for the view that no onus lies is to be
found
in the above-quoted passage in
A
v C
, supra, at 456
A-B and its subsequent
endorsement by the House of Lords in
36
Re KD
,
supra.
Moreover,
if the dispute were properly ventilated by
way
of as thorough an investigation as may reasonably be
possible,
it is, to apply the point made in
Re
KD
at 590c,
difficult
to envisage when the welfare of the child will
not
indicate one way or the other whether there should be
access.
That presupposes, of course, that all the
available
evidence, fully investigated, is finally in. It
follows
that if a court were unable to decide the issue of
best
interests on the papers it would not let the matter
rest
there. While there might often be valid reasons (for
example,
expense or the nature of the disputed evidence)
for
not involving expert witnesses, at the least the court
would
require, and if necessary call, oral evidence from
the
parties themselves in order to form its own impression (almost always
a vital one) of their worth and commitment.
Because
the welfare of a minor is at stake a court should
be
very slow to determine the facts by way of the usual
37
opposed
motion approach (
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
view of these conclusions I think that the Court a
quo
adopted the wrong approach in holding that appellant
had
to discharge an onus and that the matter had to be
disposed
of on the admitted facts and the allegations made
by
respondent.
Appellant's
second submission was accordingly right.
The
final submission advanced for appellant was that
he ought to
have succeeded on the facts.
The
undisputed evidence is this. When the application
came
before the Court below in 1992 appellant was 24 years
old
and respondent 29. He referred to himself in the
papers
as a technical manager and she called herself a data
base
administrator. They lived together for most of 1988 and 1989. When
they parted, apparently amicably,
38
respondent
was pregnant. Their son, D., was born on 3
July
1990. Some months before the birth appellant again
went
to live with respondent. While respondent was
expectant
a possible abortion overseas was considered in
discussion
with appellant's brother, a surgeon. Appellant
was
present when D. was delivered by Caesarian section.
He
left some months after the birth. He contributed
towards
the hospital expenses and bought various articles
for
the baby, including bedding. When the couple finally
parted
company respondent agreed that appellant could have
access.
Thereafter the relationship soured. In a letter
from
his attorneys to hers in November 1990 it was stated
that
he did not acknowledge paternity but that if it was
established
he would maintain the child. However, it is
admitted
in the papers that he made maintenance payments
even
before that letter, namely in July and August 1990,
and
that he made further payments from November 1990 to
January
1991.
39
In
February 1991 there was a complete cessation of contact from which
time appellant had no further access
despite
his efforts to obtain it and the situation between
the
parties became even more strained than before. After
that
the only paternal figure available for the child was
respondent's
father.
Appellant
did not pay maintenance after January 1991
but
took out an endowment insurance policy, with the child
as
beneficiary, on which the monthly premiums as at the
time
of the drafting of the founding affidavit were R451,85
per
month.
As
far as the contested evidence is concerned,
appellant
alleged that he was anxious to fulfil the
paternal
role and to maintain D. but that respondent,
for
no good reason, refused to accept any more maintenance
payments
and denied him further access.
Respondent,
on the other hand, accused appellant of
abusing
the access opportunities she gave him. She claimed
40
that
when they lived together after the birth he was seldom
at
home and gave little, if any, time to D.. Later,
when
he visited her, ostensibly to see the boy, he focused his attention
on threatening and even physically molesting
her.
For those reasons she refused him any further access
after
February 1991.
Respondent
does not allege that appellant is of poor
character,
that he would make a bad father or that
appellant's
being with D. would affect the latter
deleteriously.
The
Court a quo found appellant's papers "devoid of
any
compelling consideration in favour of allowing ...
access"
(at 214I) and held that it had not been shown that
refusal
of access would harm the boy or that the grant of
access
would benefit him (at 21 5 D-E). As I understand the
reasons
given by the learned Judge the evidence made a
neutral
impression on him and it was his view of the onus
and
the facta probanda which were decisive. For reasons
41
already
advanced, they should not have been decisive.
Adopting
the approach outlined above as to disputed i
ssues
of fact in this type of litigation, I do not think
that
the matter was properly resoluble on affidavit. Given
the
general desirability of the father-child bond and given
the
absence of any substantial allegations against
appellant's
worth as a person generally, and as a father in
particular,
there was a materially strong possibility that
further
investigation and the hearing of oral evidence
might
reveal access to be in the child's best interests.
The
accusations which respondent made against appellant are
consistent
with the breakdown of their own relationship,
not
necessarily with his unsuitability as a father.
It
seems to me, therefore, that this was an instance in which the court
should mero motu have taken the matter
further,
at least by inviting or calling the parties to
testify under
Rule of Court 6(5)(g).
I am, in
the circumstances, satisfied that the
42
approach
of the Court a quo to evaluation of the evidence
was
incorrect. This was probably inevitable given the
approach
which the learned Judge took to the question of
onus and the
facts to be proved.
In
the result appellant has failed on his primary
submission
but succeeded on the other two. The consequence
must
be that the appeal succeeds. The order a quo cannot
stand
and it ought, subject to what follows, to be replaced
by an
appropriate substitute order.
The
practical problem that arises is this. Had the decision a quo been
given, say, only a year ago, I would
have
had no hesitation in ordering a remittal for further
hearing.
What occasions difficulty, however, is the fact
that
the judgment was given some two-and-a-half years ago
and
that, as far as one knows, the child has not seen,
appellant
for over four years. One is entirely ignorant as
to
what has occurred in the meanwhile. I would hasten to
add
that blame for these delays and uncertainties cannot,
43
on
the papers, be laid at appellant's door entirely. He
does
appear to have delayed unnecessarily in bringing the
application
but on the other hand there was an unexplained
delay
of over a year between the judgment a quo and the
order
granting leave to appeal.
Having
given the effect of a remittal for further
hearing
anxious consideration, it seems to me that, as indicated, it may well
be that access will be in the
child's
best interests and that he should not be
disadvantaged
by respondent's refusal of access (if
unjustified)
or by the inadequacies inherent in forensic
procedure.
If the evidence on remittal shows that time and
circumstance
have driven an unshakable wedge between appellant and himself, so be
it. On the other hand, if
that
does not turn out to be the case, then there is still
sufficient
left of his formative childhood to permit paternal access to operate
to his benefit if access be
found to be in his best interests.
44
As
regards the costs of appeal, appellant's counsel
conceded
that in the event of the failure of his first
submission,
appellant should bear such costs despite the
success
of the other submissions opening the way to
remittal
and a further hearing. On reflection, however,
for
reasons given below, the order in respect of appeal
costs
cannot be so narrowly confined.
As
regards the costs in the Court a quo, the proper
order
to make is that they be reserved for determination by
the
Court that finally disposes of the application.
The
remaining difficulty in the case concerns the
terms
of the order which will regulate the further hearing.
One
is most reluctant to see the parties plunged into what
may
amount to an expensive and protracted trial. I am
therefore
concerned to limit the evidence as much as proper
investigation
of the essentials will permit. There do not
appear
to be any issues, as far as one can possibly judge
from
the record, which render professional expert evidence
45
necessary.
However, it could well be of assistance to the
Court
dealing with the resumed proceedings were the Family
Advocate
and a social welfare officer to investigate and
report.
The parties are the essential witnesses: above
all
else the Court will be concerned to evaluate their
merits
and demerits as people and as parents.
In
so far as appellant's counsel seemed hesitant as to
whether
his client would avail himself of the opportunity
to
pursue the application further on remittal, it would
seem
appropriate to put appellant to terms in this regard
according
to which, if he fails to take the matter further,
he
will have to pay the costs of the proceedings thus far
in
the Court below and also the costs of appeal. In regard
to
the latter costs, however, if appellant successfully
pursues
the application to final determination each party
will
pay his or her own costs of appeal. On the other hand
if,
after the hearing of oral evidence, the application is
dismissed,
appellant will bear the costs of appeal.
46
Finally,
the Judge a quo not having heard evidence in
the
case, the resumed application may proceed before him or
any
other Judge of the Division concerned.
It is
ordered as follows:
The
appeal succeeds and the order of the Court a q
uo is set
aside.
Substituted
for the order of the Court a quo is
the
following order, which is subject to the
terms of para 4
below:
"(a)
The application is referred for the hearing
of
oral evidence on a date to be arranged
with
the Registrar, on the question whether
access
by appellant to his minor child
D.C.S.
will be in the best
interests of the said child.
(b)
The evidence will be that of the parties,
of
any witnesses whom they elect to call,
and
of any witnesses whom the Court mero
47
motu elects to call.
The Family Advocate and the
relevant State Department rendering social welfare services are
hereby requested to investigate the
parties' respective
circumstances for the purpose of subsequently reporting in writing
to the Court (with copies to each party)
on the question referred to
in para (a) above.
The Registrar is directed to
communicate
this order
forthwith to the Family Advocate
and the said Department in
order to obtain their respective reports as expeditiously as
possible.
The Registrar is directed to
afford all possible preference to allocation of the date referred to
in para (a) above.
The costs of the application thus
far are
48
reserved
for decision by the Court hearing
the oral evidence."
The
matter is remitted for the hearing of oral
evidence,
in terms of the order set out in para
2
above, by any Judge performing duty in the
Witwatersrand
Local Division.
Within 30
days of the date of this order appellant shall, through his
attorneys of record, notify the Registrar of the
Witwatersrand
Local Division in writing of his
intention
to pursue the application in terms of the order set out in para 2
above. If appellant fails to give such notification,
or if he fails
to prosecute the application further
notwithstanding
such notification, that order
will
lapse and the order of the Court a quo will
revive.
49
5.
If appellant fails in either respect referred to
in
para 4 above or if the resumed application contemplated in para 2
above is dismissed,
appellant shall pay the costs of appeal.
However, if, pursuant to the
said resumed application, appellant obtains an order for
access,
each party will pay his or her own costs
of appeal.
C.T. HOWIE
JUDGE OF APPEAL
CORBETT
CJ
]
CONCUR
E
M GROSSKOPF JA
]
F
H GROSSKOPF JA
]
MARAIS
JA
]
CTH/al