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[2011] ZAWCHC 113
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Nel v Nel (1986/2011) [2011] ZAWCHC 113 (1 January 2011)
IN
THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE
No: 1986/2011
In
the matter between:
PIERRE
NEL
…..........................................................................
Applicant
And
OLA
NEL
…..................................................................................
Respondent
JUDGMENT
HENNEY,
AJ:
[1]
The Applicant and the Respondent are currently embroiled in divorce
proceedings in the Regional Court since June 2010. The
parties have
2 children ages 3 and 8 years of age. In terms of a Court Order
issued by Desai J, in this court on 23 June 2009,
the children are
primarily resident with the Respondent subject to reasonable contact
being afforded to the Applicant as set
out in the order.
[2]
This current application concerns the school arrangements of the two
children.
[3]
The eldest child was a learner at Kenridge Primary school in
Bellville, after he attended the pre-school at the same school
in
2007, Grade R in 2008 and or 2009 and 2010 he attended Grades 1 and
Grade 2 respectively.
[4]
It seems that the eldest child was happy at the school and did not
have any problems.
[5]
The youngest child attended Pixie Daycare in the same area, and
would have attended Fledglings Pre-Primary School, adjacent
to
Kenridge Primary School in 2011.
[6]
When the new school year commenced, it came to the notice of the
Applicant that the Respondent had without informing or consulting
the Applicant, removed the eldest child from Kenridge Primary School
and did not enrol the youngest child as agreed with the
Applicant at
Fledglings Pre-Primary School in Kenridge, Bellville. This is common
cause. The provisions of Section 31(1)(a),
read with
Section 31(b)
(iv) of the
Children's Act 38 of 2005
are applicable. These are:
"Major
decisions involving child - (1)(a) Before a person holding parental
responsibilities and rights in respect of a child
takes any decision
contemplated in paragraph (b) involving the child, that
person
must give due consideration to any views and wishes expressed by the
child, bearing in mind the child's age, maturity and
stage of
development.
(b)
a decision referred to in paragraph (a) is any decision -
(i)
(ii)
(iii)
(iv)
which is likely to significantly change, or to have an adverse
effect on, the child's living conditions, education, health,
personal relations with a parent or family member or, generally, the
child's well-being."
[7]
The Respondent enrolled the children at Islamia College in
Rondebosch East.
[8]
It is also common cause that the Respondent did not advance any
reason why she did not inform the Applicant thereof, at that
time
when this happened.
[9]
In later correspondence from her attorneys it emerged that to ease
her travelling burden, she took this step. In her Answering
Affidavit, she only states that the children were granted bursaries
to attend the new school.
[10]
For whatever reason this was done, it is clear that there had to be
consultation. The crisp question would be, notwithstanding
the
parental rights of the Applicant, whether the fact that they were
removed from one schooling environment to another, was
in the best
interests of the children.
[11]
Although the Respondent in her papers avers that by moving the
children back to their previous schools will not be in their
best
interests. This bold statement, however is not convincing.
[12]
It is clear that the actions and conduct of the Respondent was in
contravention of the law, and a court should not lightly
condone
such conduct on the part of a parent, where it is clearly not
justified, under the guise that it is in the best interests
of the
children.
[13]
Apart from stating boldly, that by moving the children back to their
previous school environment, would not be in their best
interest,
the Respondent does not give substantial reasons why she believed
that it was in their best interests to remove them
from Kenridge
Primary School or to have the younger child enrolled at Fledgings
Pre-Primary School as agreed to with the Applicant.
Both
children are at a young age, the older child had been in that school
environment since 2007 and the younger child since 2009.
[14]
There is clear evidence from the Applicant and the school that the
children were happy and content with this environment.
The
Respondent disturbed the status quo, the onus was on her to show why
it would be in the best interests of the children to
disturb this,
she clearly did not.
[15]
In fact she in a clandestine and under hand manner, without
sufficient justification to do so, removed the children. This
clearly cannot be said to be in their best interests.
Furthermore,
there is no objective evidence to suggest that the removal of the
children from the one schooling environment to
the one the
Respondent chose was in their best interests so as to disregard the
rights of the Applicant to have been properly
informed or consulted
about the fact that the Respondent had removed the children from one
schooling environment to another.
[16]
The next question one would ask at this stage, is whether it would
be in the best interests to move the children back to
their previous
schooling environment?
[17]
At this stage, I am of the view that having regard to the short time
the children had spent at Islamia College and also it
being a whole
new environment compared to the longer time they had spent at
Kenridge which is a known and stable environment
to them, there
would be a greater harm if they are not moved back to their previous
schooling environment.
[18]
A proper assessment and investigation by the Family Advocate would
be of great assistance in determining the future schooling
plan of
the children.
[19]
I am of the view having regard to the fact, that we are dealing with
young vulnerable children, and the fact that the school
year had
basically reached one month, the harm would have been greater to the
children had this application not been heard on
an urgent basis.
[20]
The Applicant therefore made out a case why this application should
have been heard in terms of Rule 6(12) of the Uniform
Rules of
Court.
[21]
In conclusion after consideration of the papers and after hearing
Counsel for both parties, the following order is made:
1.
The application is postponed for hearing in Third Division to Friday
the
25
th
of
March 2011;
2.
The Respondent is ordered to immediately return to and/or re-enroll
the minor children
B
N,
born
on 7 June 2002 and
S
N,
born
on 5 September 2006 at Kenridge Primary School and Fledgings, the
pre-school facility at Kenridge respectively by no later
than
Friday
the
18
th
of
February 2011;
3.
The Family Advocate is directed to urgently investigate what school
and aftercare arrangements would be in the best interests
of the
children, pending the finalisation of the parties' divorce and to
deliver their written report containing their recommendations
in
this regard by no later than the
18
th
of
March 2011;
4.
Both parties are directed to fully co-operate with the office of the
Family Advocate in order to enable them to complete their
assessment
in this regard and that the parties shall make the minor children
available for said assessment when so required by
the Family
Advocate.
5.
The costs of this application stand over for later determination.
HENNEY,
AJ