Brief Summary

Family Law — Access to illegitimate child — Appellant sought access to his illegitimate daughter, opposed by the mother — Court a quo denied access based on the father's lack of established rights — Appeal considered in light of the principle that the welfare of the child is paramount — Court held that the approach of the court a quo was inconsistent with established legal principles, emphasizing that access should be determined by the child's best interests rather than the legitimacy of the parent-child relationship — Appellant entitled to access under specified conditions.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an appeal to the Supreme Court of South Africa (Appellate Division) from a decision of the Transvaal Provincial Division given in motion proceedings. The appellant, Lolo Elias Tshaka, sought an order granting him access to his minor child, Koketso, who was born to him and the respondent, Lefalane Amanda Mokoena, outside of marriage. The respondent, as the child’s mother and custodial parent, opposed the relief.

The application in the court a quo (Du Plessis J) was heard and decided before the Appellate Division’s judgment in B v S 1995(3) SA 571 (A), at a time when there was recognised uncertainty concerning a father’s position regarding access to an illegitimate child. Leave to appeal was granted in part because of that unresolved legal uncertainty.

The general subject-matter of the dispute was whether, having regard to the welfare of the child, the appellant should be permitted contact with Koketso, and if so, on what terms. The case also raised important procedural questions about how a court should approach factual disputes in access disputes brought on affidavit, and whether any onus rests on either parent when access is determined for the first time.

2. Material Facts

The parties were involved in a relationship from approximately 1985 to 1991, but they did not cohabit. Koketso was born in January 1986, and the respondent initially lived with her parents.

After the respondent returned to work in August 1986, an arrangement was made whereby the appellant would collect Koketso each morning, take her to his parents’ home where his stepmother would care for her, and return her to the respondent’s home in the evenings. In November 1986, the respondent moved to Port Elizabeth for nursing training until October 1987 and did not take Koketso with her. The papers reflected a dispute as to the extent of the appellant’s caregiving during this period, but the court treated it as clear that the appellant actively participated in Koketso’s care in her early years and maintained contact until prevented from doing so.

The respondent returned in October 1987, obtained employment at Ga-Rankuwa Hospital, and the appellant continued regular contact with Koketso. In August 1988, the appellant was transferred to Pietersburg and returned to Pretoria on weekends; at times the respondent and child visited him. By March 1991, the appellant was back in Pretoria. Koketso, then about five, attended a preprimary school, and the appellant paid R300 per month in school fees.

In April 1991, the respondent ended the relationship after discovering the appellant was having an affair. The appellant continued to see Koketso, but relations between the adults deteriorated. The respondent alleged that the appellant assaulted her on several occasions (both before and after the breakup) and that he used child visits to force his attentions on her. In February 1992, the respondent informed the appellant he was no longer to visit Koketso. The appellant thereafter attempted to see Koketso at school, but this was also stopped at the respondent’s insistence.

In early 1992, the respondent instituted a maintenance inquiry alleging lack of support, which the appellant denied; the inquiry was not heard due to jurisdictional issues. In April 1992, the respondent laid a rape complaint against the appellant. He was tried and acquitted in August 1992, and he subsequently obtained a default judgment against the respondent for malicious prosecution in the amount of R7000.

The respondent formed a relationship with Mr Mamabolo in late 1991 and married him in February 1993. He developed a good relationship with Koketso and commenced adoption proceedings during 1993. Against that background, the appellant launched the present application for access in August 1993.

Although the litigation was not a divorce matter, the court referred the access issue to the Family Advocate for investigation. A social worker (Mrs Z S Semenya) was involved, and it was agreed that a clinical psychologist, Mr Peter Jacobs (initially engaged by the respondent), would conduct a full evaluation. Mr Jacobs produced a detailed report dated 2 May 1994 recommending access, initially as structured and supervised contact. The Family Advocate supported access, as did Miss Mathole, a social worker involved in the adoption process. Mrs Semenya, in a report dated 16 May 1994, recommended that access be refused.

A central factual feature relied upon by the appellate court was Mr Jacobs’s finding of a possible “Parental Alienation Syndrome”, reflected in his earlier report and confirmed after full evaluation. Mr Jacobs reported that Koketso expressed reluctance to see the appellant in Mr Mamabolo’s presence, but appeared relaxed and eager for contact when Mr Mamabolo was not present. He described supervised interaction between father and child as relaxed, playful, and free of fear, and he attributed Koketso’s anxiety to fear of disapproval or rejection from the respondent and Mr Mamabolo rather than to the appellant himself.

The appellate court also treated it as significant that, by the time the parties’ relationship ended, Koketso was already about five years old, that an ordinary parent-child bond would likely have formed, and that the appellant had been prevented from continuing contact thereafter.

3. Legal Issues

The central legal questions were whether the court a quo applied the correct legal approach to an application by a father for access to an illegitimate child, and whether it correctly treated the matter as one in which the father bore an onus to justify judicial interference with the mother’s guardianship.

Closely connected to that was whether access disputes should be resolved using the conventional motion-proceeding approach to factual disputes (including reliance on the Plascon-Evans technique), or whether access determinations are better understood as a judicial investigation in which the court is not confined by adversarial burdens of proof.

The dispute therefore concerned questions of law (the correct legal test and the existence of any onus), questions of fact (the child’s attitude, the quality of the father-child bond, and the reasons for the child’s expressed reluctance), and the application of the welfare standard to the facts, including an evaluative judgment about which expert recommendations were to be preferred and what procedural course would best serve the child’s interests.

4. Court’s Reasoning

The appellate court approached the matter through the principles articulated in B v S 1995(3) SA 571 (A). It held that, although the common law historically distinguished between legitimate and illegitimate children regarding a father’s rights, in modern law the decisive consideration is consistently the welfare of the child, not the child’s legitimacy. The appellate court emphasised that, to the extent that one speaks of a “right” or “entitlement,” it is the child’s entitlement either to have access or to be spared access that is controlling.

In line with B v S, the appellate court held that, when access is judicially determined for the first time, there is no onus in the sense of an evidentiary burden or “risk of non-persuasion” resting on either party. The matter is not treated as conventional adversarial litigation but rather as an investigation in which the court may call evidence mero motu. This also meant that a court should be slow to resolve factual disputes using the ordinary approach to opposed motion proceedings as described in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623 (A).

On that legal foundation, the appellate court found that the court a quo’s approach was inconsistent with the later-authoritative position. The court a quo had treated the mother’s guardianship as a starting point that should not lightly be interfered with, and had required the father to show “compelling reasons” for such interference. The appellate court characterised this as a misdirection, because it substituted an onus-based, parent-centred model for the correct welfare-centred inquiry.

The appellate court also held that the court a quo misdirected itself in its evaluation of the expert evidence. It noted that the court a quo dismissed the views of Mr Jacobs and Miss Mathole because they did not address the notion that the father sought interference with the mother’s parental powers. The appellate court held that this dismissal was itself a product of the incorrect legal approach, because the inquiry is not framed as interference with guardianship but as an assessment of what would best promote the child’s welfare.

In considering the competing professional recommendations, the appellate court preferred Mr Jacobs’s evaluation (supported by the Family Advocate and Miss Mathole) to that of Mrs Semenya. The appellate court considered it significant that Mrs Semenya’s recommendation appeared to rest heavily on Koketso’s expressed disinterest in seeing her father, without recognising—on the information before the appellate court—that such statements were not necessarily reliable indicators of Koketso’s true feelings in light of the identified alienation dynamic. The appellate court also noted that Mrs Semenya’s report contained what it regarded as irrelevant or incorrect considerations, including the proposition that the father had no legal right of access unless the mother consented, and criticism linked to his failure to marry the respondent.

The appellate court then articulated an evaluative proposition derived from the welfare principle: where a natural bond between parent and child has been established (whether in the context of legitimacy or not), it would ordinarily be in the child’s best interests that the relationship be maintained unless there are particular factors showing that the child’s welfare requires deprivation of such contact. Applying that to the facts it regarded as clear, the appellate court held that the appellant had actively cared for Koketso in her early years, that a bond would likely have formed, and that the evidence did not demonstrate factors sufficient to justify a complete termination of contact. The appellant’s conduct relied upon against him—fathering another child and discontinuing maintenance payments after November 1991—was not treated by the appellate court as rendering him unfit to maintain a relationship with Koketso.

Despite finding that the court a quo erred both in approach and in result, the appellate court did not itself make a final access order. It reasoned that more than two years had elapsed since the court a quo’s decision, the appellant had been without contact for an extended period, and the access contemplated by Mr Jacobs in 1994 had been proposed as initially limited and supervised pending reassessment. These features, combined with the existence of factual disputes, meant the appellate court considered itself not in a position to determine the nature and extent of access on the appeal record alone.

The appellate court therefore selected a procedural remedy aligned with B v S. It ordered that the matter be remitted for the hearing of oral evidence, supported by an updated investigation and revised report from the Family Advocate. This course was preferred because, if the parties could not agree on access, factual disputes would likely need to be resolved through oral testimony rather than affidavit.

5. Outcome and Relief

The appeal succeeded and the order of the court a quo was set aside. In substitution, the application was referred for the hearing of oral evidence in the Transvaal Provincial Division on whether access by the appellant to Koketso would be in her best interests and, if so, the nature and extent of such access. The order provided that evidence could be led by the parties and witnesses of their choosing, and also by any witnesses the court might call mero motu.

The Family Advocate was requested, with assistance from the relevant state social welfare department, to investigate the parties’ circumstances for purposes of updating the report dated 27 May 1994 and delivering a revised report to the court and the parties. The Registrar was directed to communicate the order to the Family Advocate forthwith and to give preference to the allocation of a hearing date.

Costs incurred in the application up to that stage were reserved for decision by the court that would hear the oral evidence. The order further required the appellant, within 30 days, to notify the Registrar of his intention to pursue the application; failing such notification (or further prosecution), the substituted order would lapse and the original order would revive. The costs of appeal were made conditional: if the appellant failed to pursue the matter or if the resumed application were dismissed, he would pay the costs of appeal; if he obtained an order for access in the resumed proceedings, each party would pay their own costs of appeal.

Cases Cited

B v S 1995(3) SA 571 (A).

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623 (A).

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Appellate Division held that the court a quo misdirected itself by approaching access to an illegitimate child on the basis that the father bore an onus to show compelling reasons to justify interference with the mother’s guardianship. The correct approach is that access is determined solely by reference to the welfare of the child, and in an initial judicial determination of access there is no onus on either party in the conventional sense.

It held further that the court a quo incorrectly dismissed professional recommendations favouring access on the basis of the misdirected legal approach, and that the evidentiary material indicated an established father-child bond and an absence of factors justifying complete denial of contact. However, because of the passage of time and the existence of factual disputes, the appellate court held that it could not make a final access order on appeal and instead remitted the matter for oral evidence and an updated Family Advocate report.

LEGAL PRINCIPLES

The controlling principle in access disputes, including disputes involving an illegitimate child, is the best interests (welfare) of the child, and not parental status or claims framed as parental “rights.”

In a first-time judicial determination of access, the proceedings are characterised as a judicial investigation rather than strictly adversarial litigation, with the result that there is no onus in the sense of an evidentiary burden on either parent, and a court should be cautious about resolving disputes purely through the standard motion-proceeding method for factual disputes.

Once a natural bond between parent and child has been established, it will ordinarily be in the child’s interests that the relationship be maintained unless particular factors demonstrate that the child’s welfare requires denial of contact; the inquiry is fact-sensitive and evaluative, and may require oral evidence where disputes of fact and the passage of time make affidavit material inadequate.

Tshaka v Mokoena (523/94) [1996] ZASCA 96 (19 September 1996)