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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
Case Number: 011028/2024
A[…] H[…] APPLICANT
AND
MAGISTRATE VC MOSE FIRST RESPONDENT
J[…] M[…] SECOND APPLICANT
JUDGMENT
___________________________________________________________________
MAKUME, J :
Introduction:
1. The applicant in this matter seeks an order reviewing and
setting aside the decision of the first respondent sitting as a
magistrate in the Children’s Court held at Johannesburg, in
which decision the first respondent granted and awarded the
second respondent rights in terms of section 21 of the
Children’s Act 38 of 2005.
2. The applicant is the biological mother of the minor child, J [… ]
G[… ] H[… ], born on 20 May 2016. The child was born out of a
romantic relationship between the applicant and the second
respondent. The minor child lives with the applicant at 5 [… ]
A[… ] Road, M [… ].
Background facts :
3. It is common cause that on 7 December 2023 under case
number 14/1/4 -286/2/2023, Magistrate’s Court Johannesburg,
a parenting plan was made an order of court by the first
respondent. The applicant now seeks an order that the order
referred to above be reviewed and set aside.
4. Before dealing in detail with the merits of the review
application, it is perhaps appropriate at this stage to set out a
brief narrative of facts and circumstances that gave rise to the
impugned order, which circumstances and facts have a bearing
on the question to be decided in this review.
5. On 7 August 2023 the second respondent filed an application
at the Children’s Court in Johannesburg, asking the court to
assist him in getting access and contact to his daughter, the
minor child. He said in his affidavit, which was confirmed by
his mother, that it has been four years that the applicant has
been denying him access and contact with the minor child.
6. On 23 August 2023 the applicant and the second respondent
appeared before magistrate Mose, the first respondent, in the
Children’s Court and in their presence the court made an
order, requesting the family advocate to do the following:
i. Investigate validity of allegations made by the
second respondent to the effect that the appellant
is denying him access to the minor child.
ii. Consult with minor child if the minor child is of a
mature age and can understand the issue.
iii. Investigate the circumstances of the minor child as
well as those of the biological parents, being the
applicant and the second respondent.
iv. To assist the parties with mediation and should
such mediation not be successful, then the family
advocate should submit a report with
recommendation s.
v. The matter was postponed to 26 September 2023.
7. On 26 September 2023 both the applicant and the respondent
were directed to have a consultation with the family advocate
on 16 October 2023 and the matter then stood down to 17
October 2023.
8. On 17 October 2023 the parties appeared before Magistrate
Mose in the Children’s Court and the following note is made by
the presiding officer:
“Parties before court and informed court that
they attended at the office of the family
advocate and not yet finalised the process.
Social worker home visitation still to be done
and the applicant has reached an agreement to
visit the child with respondent every alternative
Sunday of the month at the respondent’s
complex playing ground. Matter postponed to 20
November 2023 for possible finalisation and
parties warned of next court date and penalties
for non -compliance explained.”
9. On 16 October 2023 the applicant and the second respondent
signed a detailed parenting plan before the family advocate.
In the parenting plan it was agreed, amongst others, that the
second respondent shall exercise contact with the minor child
on alternative weekends, alternative Saturdays and Sundays
from 10h00 until 13h00.
10. The parenting plan also made provision that the second
respondent will pay 50 percent of the school fees and 50
percent for cost of clothing of importance is what the parties
say in the agreement. They say the following:
“We agree to sign this parenting plan as a record
of our intention to ensure the best interest of
the minor child, with regard to his care, welfare
and development, is catered for. We agree that
the contents of this parenting plan will be
reviewed if and when either one of or the other
needs of the child changes. Review of the
parenting plan will be done with the assistance
of a mediator.”
11. Prior to the next court appearance, being 20 November 2023,
the applicant sought the assistance of legal advice and
consulted Albasini Attorneys, who on 13 November 2023
addressed a letter for the attention of “The Clerk of the
Harassment Court, Johannesburg, re case A H [… ] v J M [… ],
case number 1503/2018.”
12. That letter, which is attached as ANNEXURE FA8 to the
applicant’s founding affidavit, quotes a different case number
to what is involved in the Children’s Court matter . The
attorney request s copies of contents of the file, presumably a
matter involving harassment. However, it is the last two
paragraphs of that letter which seemed to refer to this matter .
In that letter the attorney tells the clerk of the Harassment
Court that he is not available to attend court on 20 November
2023 and proposed 4 dates, being 7 and 12 December 2023 as
well as 10 and 11 January 2024.
13. The attorney continues and says the following:
“We wish to take this opportunity to inform the
honourable Court that our client has approached
and appointed a private social worker as per the
parenting plan in order to assist with the matter
going forward. We have requested the social
worker to prepare reports for the consideration
of the honourable Court, which are to be taken
into account with regards to the best interest of
the minor child.”
14. On 20 November 2023 only the second respondent attended
court as the applicant had to take the minor child to a doctor.
However, the letter from the attorney was handed in and noted
by the court. What then appears is that the next court date
was initially written as 11 January 2024, then altered to 7
December 2023. The clerk of the court was instructed to
inform the applicant about the date being 7 December 2023
and no longer 11 January 2024.
15. On 7 December 2023 only the second respondent attended
court and the parenting plan that had been signed on 16
October 2023 by the parties was made an order of court.
16. On 18 December 2023 Albasini Attorneys addressed a Rule
51(1) notice to the magistrate, requesting reasons as to how
the order was given without the applicant being present and
being warned to appear and having been excused to appear on
11 January 2024.
17. On 10 January 2024 the magistrate complied with the notice
and set out his reasons. In paragraph 4 of the response the
magistrate says the following:
“Both parties had finalised their issues as at 16
October 2023 when they signed the parenting
plan and the order should have been made on
17 October 2023 when they appeared in court.”
The applicant’s case:
18. The applicant in paragraph 35 of her founding affidavit says
that she came to know about the parenting plan having been
made an order of court on 17 December 2023. She was
informed by the second respondent during one of his contact
services. Significantly, that date fell on a Saturday, which is in
line with what is in the agreed parenting plan. It means that
the parties were already abiding by the parenting plan.
19. It is applicant’s case that the first respondent erred, by making
the parenting plan an order of court when in fact the social
worker still had to make home visit. As regards the signing of
the parenting plan she says that the social worker told her not
to dwell on the past issues and sign the agreement, which she
did.
20. Lastly, it is applicant’s case that the magistrate failed to
comply with section 21 of the Children’s Act 38 of 2005. That
section and its subsections reads as follows:
Parental responsibilities and rights of unmarried fathers :
21. The biological father of a child who does not have parental
responsibilities and rights in respect of the child in terms of
section 20, acquires full parental responsibilities and rights in
respect of the child:
a) If at the time of the child’s birth he is living with the
mother in a permanent life partnership, or
b) If he, regardless of whether he has lived or is living
with the mother:
i. Consents to be identified or successfully
applies in terms of section 26 to be identified
as the child’s father, or pays damage in terms
of the customary law.
ii. Contributes, or has attempted in good faith to
contribute to the child’s upbringing for a
reasonable period, and
iii. Contributes, or has attempted in good faith to
contribute towards expenses in connection
with the maintenance of the child for a
reasonable period.
iv. If there is a dispute between the biological
father referred to in subsection (1) and the
biological mother of a child with regard to the
fulfilment by that father of the conditions set
out in subsection 1(a) or (b), the matter must
be referred for mediation to a family advocate,
social worker, social service professional, or
other suitably qualified person.
The second respondent’s case:
22. The second respondent says that he is the biological father of
the minor child and that the parenting plan was signed freely
and voluntarily by both him and the applicant in the presence
of a social worker.
23. Attached to the second respondent’s answering affidavit is the
full report of the parenting plan which includes a confirmatory
statement by the social worker that she satisfied herself that
the parenting plan was in the best interest of the minor child.
24. In paragraphs 177 and 205 of the answering affidavit the
second respondent says categorically that the parenting plan
was signed freely and voluntarily by both of them and yet in
her reply the applicant simply refers to what is in her founding
affidavit. She does not deny having signed the parenting plan,
neither does she allege any pressure being exerted on her to
sign.
25. In paragraph 187 of his answering affidavit the second
respondent says the following:
“The applicant and I were living together from
November 2015 until Good Friday in 2017, which
was 14 April when the applicant vacated our
common home while I was at church.”
In her reply at paragraph 260 the applicant does not deny or admit
that and referred the court to what she has stated in her founding
affidavit. She does not direct the court as to what she said in her
affidavit, because she has alluded to so many instances, all that
can be gleaned from her affidavit is her constant allegation that the
second respondent abandoned the child for five years.
Evaluation of the evidence :
26. One of the grounds of review as pleaded by the applicant is
that the applicant had no knowledge about the date of hearing
being 7 December 2023, and therefore the first respondent
committed an error by making the parenting plan an order of
court in the absence of the applicant and her attorney.
27. This allegation is not true. In his answering affidavit at
paragraph 116.2 and 116.3 the second respondent referred to a
WhatsApp message that he sent to the applicant, informing her
of the date of hearing being 7 December 2023. The applicant
responded by saying the following:
“My attorney will address this with you further.
Thanks.”
28. Besides this and as further proof that both applicant and her
attorney knew about the date as well as the existence of the
parenting plan, her attorney in the letter dated 13 November
2023, which is a date after having been informed about the
date of 7 December 2023, saying that their client, the
applicant, has appointed a private social worker as per the
parenting plan to assist with the matter going forward.
29. In my view this ground of review is misguided and fal ls to be
dismissed. The applicant and his attorney knew about the new
date and decided to stay away. There is no indication that the
attorney attempted to find out from the cl erk of the court what
date had been decided upon.
30. The next ground of review raised by the applicant is that the
first respondent erred by making the parenting plan an order
prior to the social worker’s report. There is no w here in the
signed parenting plan where it is indicated that the parenting
plan shall await a report from the social worker. Instead, what
appears on ANNEXURE FA12, case line 01– 54, under the
heading: ‘Dealing with the second respondent’s contact and
access process’, is the following:
i. The father shall exercise contact with the child on
alternate weekends, alternating Saturdays and
Sundays, from 10h00 until 13h00. Contact will take
place at the play area of the mother to residence for
three months.
ii. Both parties will appoint a social worker in the
private practice who will conduct home visits at the
parties’ residence and phase in contact. The social
worker will monitor and structure the next phase of
contact.
31. Clearly, the duty of the private social worker is defined in the
parenting plan, has got nothing to do with having to await the
report. What a social worker is mandated to do is to monitor
the agreed contact and supervision and to make a report. It is
worth mentioning that in fact the second respondent
commenced exercising his rights in terms of the parenting plan
immediately in October 2023, even before it was made an
order of court. The applicant never told the second
respondent to await a social worker’s report.
32. The next ground of review which in my view is dispositive of
this review application is that the magistrate erred in not first
satisfying himself that the second respondent meets the
requirements of section 21 of the Children’s Act 38 of 2005 to
qualify him to be afforded parental rights and responsibilities.
33. The second respondent has in his affidavit said that he was in
a live -in romantic relationship with the applicant from the year
2015 up to until the year 2019 when the applicant left the
common home with the minor child. This was never disputed
by the applicant, which means that the second respondent’s
acquired parental rights and responsibilities in terms of section
21(1)(a), secondly at various stages, both in correspondence
to the teacher and in the applicant’s application for a
protection order against the second respondent, she refers to
him as the father of the minor child. In the result this has also
clothed the second respondent with parental rights, as
prescribed in terms of section 21(1)(b).
34. This application, so says the applicant, is brought in terms of
Rule 53(1) of the Uniform Rules of Court. This rule must
accordingly be read in conjunction with section 22(1) of the
Superior Courts Act 10 of 2013, which reads as follows:
“The grounds upon which the proceedings of any magistrate’s
court may be brought under review before a court of a
division are:
a) Absence of jurisdiction on the part omoyo f the
court.
b) Interest in the cause, bias, malice, or corruption on
the part of the presiding judicial officer.
c) Gross irregularity in the proceedings, and
d) The admission of inadmissible or incompetent
evidence, or the rejection of admissible or
competent evidence.”
35. It is therefore appropriate that in considering this review
application, this court must have regard to section 22 of the
Superior Courts Act. It is not in dispute that the Children’s
Court has the jurisdiction to deal with this matter, especially to
give effect to the parenting plan in terms of section 45 and 46
of the Children’s Act.
36. As regards interest in the cause, bias, or malice on the part of
the presiding officer, there is no shred of evidence that the
presiding officer is guilty of such. The only suspected
impropriety which I have already dealt with earlier in this
judgment is the changing of the dates of hearing from 11
January 2024 to 7 December 2023. The applicant was duly
informed and it is expected that she did inform her attorney.
She herself does not tell the Court why she did not attend
court after having been notified by second respondent.
37. Lastly, there is no evidence that the presiding officer admitted
inadmissible or incompetent evidence. The presiding officer
does in fact say that he could have still made the parenting
plan an order of court on 17 October 2023 when the parties
appeared before him.
38. The parenting plan was agreed upon by both parties and was
made an order of court. This was after the presiding officer
has satisfied himself that the family advocate had adequately
dealt with all the directives contained in his letter through the
family advocate.
39. In making the parenting plan an order of court, the presiding
officer confirm ed same to be in the best interest of the minor
child. In the result I make the following order
ORDER
1. The application to review the order by the first respondent in
making the parenting plan signed on 16 October 2023 is
dismissed.
2. The applicant is ordered to pay the second respondent’s taxed
party and party costs on scale C.
_____________________
MAKUME J
JUDGE OF THE HIGH COURT
JOHANNESBURG
Appearance
For the Applicant: : Adv Nadia Smith
Instructed by : Albasini Attorneys
For Respondent : TJC Dunn Attorneys