M.M v A.V (2901/2010) [2011] ZAWCHC 425 (16 November 2011)

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[2011] ZAWCHC 425
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M.M v A.V (2901/2010) [2011] ZAWCHC 425 (16 November 2011)

IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE HIGH COURT,
CAPE TOWN)
CASE NUMBER: 2901/2010
In
the matter between:
M M
…......................................................................................................................
Applicant
and
A V
…...................................................................................................................
Respondent
Heard
:
12, 13, 17, 18, 19 October 2011 and 9 November 2011
Court
:
Acting Judge J I Cloete
Delivered
:
16 November 2011
JUDGMENT
CLOETE AJ:
INTRODUCTION
:
[1] This matter comes before me
on oral evidence for the determination of certain specific issues
pursuant to orders which I made
on 23 November 2010. Costs orders are
standing over in respect of these orders as well as orders made on 26
February 2010, 17 May
2010, 2 December 2010 and 16 March 2011,
together with the costs of an interlocutory application brought by
the applicant against
the respondent under case no 12660/2010.
BACKGROUND
[2] The parties met one night in
August 1999. Their son, M, was conceived that night and the parties'
respective versions of events
surrounding the child's conception are
divergent. According to the applicant he has no recollection of the
events of that night
due to his state of intoxication and has in fact
no recollection of having had sexual intercourse with the respondent
on that night.
He states that the only proof he has that the parties
indeed had sexual intercourse on the night in question is the outcome
of
the paternity tests conducted on M, which established the
applicant to be M's biological father. M is now 11 years old.
[3] It is the
respondent's contention that the applicant stated to her, subsequent
to the night in question, that he remembered
having had sexual
intercourse with her. She says that she has no recollection of having
had sexual intercourse with the applicant
due to her intoxicated
and/or drugged state and that she could not have consented to sexual
intercourse in the circumstances. Because,
so she contends, the
applicant could remember having sexual intercourse with her, he must
have been in a position to know that
she was not able to consent to
sexual intercourse with him: accordingly she was raped and the
applicant cannot therefore acquire
parental rights and
responsibilities in respect of M as contemplated in s 21 of the
Children's Act 38 of 2005
('the
Children's Act)
as
read with the definition of
'parent'
contained
in
s 1
of the
Children's Act. The
allegation of rape was raised for
the first time by the respondent on 1 February 2010 when M was 9
years old, shortly prior to
the applicant commencing proceedings in
this court on 12 February 2010 for the recognition and definition of
his parental rights
and responsibilities in respect of M.
[4]
Section 21
of the
Children's
Act provides
as follows:
'
'21
Parental responsibilities and rights of unmarried fathers
(1)
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 damages in terms of
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.
(2) This section does not
affect the duty of a father to contribute towards the maintenance of
the child.
(3)
(a)
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.
(b)
Any
party to the mediation may have the outcome of the mediation reviewed
by a court.
(4)
This
section applies regardless of whether the child was born before or
after the
commencement of this Act.'
[5] The
relevant portion of the definition of
'parent'
in
s 1
of the
Children's Act reads
as follows:
' "parent", in
relation to a child, includes the adoptive parent of a child, but
excludes -
(a) the biological father of
a child conceived through the rape of or incest with the child's
mother...'
HISTORY
OF THE LITIGATION
[6] The parties enjoyed a
co-operative and comfortable co-parenting relationship until the
respondent became involved with her husband
R V during 2007. From
that time onwards their relationship steadily deteriorated with more
and more issues being raised by the
respondent in regard to the
applicant's involvement in M's life. This resulted in the applicant
eventually appointing a clinical
psychologist, Bernard Altman, to
conduct an assessment as to what care and contact arrangements would
be in M's best interests.
The respondent at that stage steadfastly
refused to attend mediation with the applicant in order to resolve
their differences.
(She also subsequently withdrew from Mr Altman's
assessment despite initially having agreed to co-operate therein.)
[7] A dispute
then arose about the applicant's contact with M over the December
2009/January 2010 school holiday. On 30 November
2009 R V addressed
an email to Mr Altman in which he advised that:
As
with immediate effect, M will not be going on holiday.
We have been reasonable, but
as he has threatened us he must go and get a court order. I suggest
that he applies for legal guardianship
through the High Court before
he applies for the court order. His rights are not automatic and we
aggressively defend our rights.
I am not interested in
someone taking up all the airtime and distressing my wife over
nothing.'
[8] The parties were unable to
resolve the holiday contact dispute and the applicant decided to
approach court for relief. Before
the issuing of that application the
respondent was provided with a copy of the notice of motion in the
hope that litigation could
still be avoided.
[9] Thereafter at a round table
meeting held on 10 December 2009 the parties resolved the holiday
contact dispute with the assistance
of their respective legal
representatives. However, the respondent made it clear that she
disputed that the applicant had any parental
rights and
responsibilities in respect of M. It was thus recorded in a letter
from the applicant's attorney to the respondent's
erstwhile attorney
that:
'In the circumstances, we
confirm that we will not be pursuing an application on an urgent
basis, but indeed intend proceeding with
an application in the new
year to confirm our client's parental rights and responsibilities in
view of your instructions, as conveyed
on today's date, that these
are in dispute.'
[10] It appears that the
applicant was in the process of finalising the present application
when on 1 February 2010 he received
an email from the respondent
accusing him for the first time of rape and essentially threatening
to raise this in the event of
him pursuing parental rights and
responsibilities in respect of M.
[11] When the application was
launched on 12 February 2010 the applicant thus sought both urgent
interim relief and long-term relief.
[12] The
applicant sought that a rule
nisi
be
issued calling upon the respondent to show cause on a day determined
by the court why an order should not be made,
inter
alia,
recognising
that the parties were co-holders of parental rights and
responsibilities, that M would reside with such party as recommended

by Mr Altman, that the parties should make joint decisions in
relation to certain aspects of M's life, that contact should take

place during school terms on the basis of alternate weekends from a
Thursday until a Monday morning and in the alternate week on
a
Thursday until a Friday morning, that vacations be shared on an equal
basis, that the parties have contact with M on certain
special
occasions and public holidays, that the parties have certain rights
in respect of contact with M's school and teachers
and that a
facilitator be appointed to address any disputes arising between the
parties in the exercise of their parental rights
and
responsibilities.
[13] On an interim basis, and
pending the final determination of the application, the applicant
sought an order that his contact
with M take place as set out above,
that other relief in respect of care and contact periods and contact
with school teachers be
implemented, that the respondent be directed
not to remove M from the Republic of South Africa without the
applicant's written
consent and that she hand M's passport to her
attorney for safekeeping. In addition, an order was sought directing
the respondent
to co-operate with Mr Altman and to make herself and M
available to Mr Altman as and when he requested for this purpose.
[14] Given that the respondent
disputed the applicant's parental rights and responsibilities it was
not unexpected that he was advised
to proceed with an application in
this regard: indeed this was the very route which R V had indicated
that he should take.
[15] On 26
February 2010 Cleaver J granted an order ("the February 2010
order"). In terms of such order, the matter was
postponed to 17
May 2010 and certain interim relief was granted. This included,
inter
alia,
that
M would remain in the respondent's primary care (which the applicant
did not seek to alter on an interim basis) and that most
of the
contact and related provisions would be implemented. In addition, it
was ordered that neither party would be permitted to
remove M from
the Republic of South
Africa without the other party's
written consent. The relief sought in respect of Mr Altman was also
granted, with the addition
of a condition that Mr Altman would only
consult with M after he had consulted with the expert appointed by
the respondent.
[16] The respondent recorded in
the February 2010 order that she:
'...does not hereby concede
that the matter warrants an urgent hearing and reserves the right to
argue the question of urgency,
the procedure by which the applicant
approached this Honourable Court and any question of separation of
issues."
[17] In response to the main
relief sought by the applicant, the respondent in her opposing
affidavit filed subsequent to the February
2010 order, in turn sought
an order as follows:
"96. I accordingly
humbly pray for an Order in the appropriate terms, namely:
That the application be
dismissed with costs;
Alternatively, that the
application be stayed, pending the determination of an action to be
instituted, by either party, to resolve
the dispute between the
parties as to whether-
The Applicant is a 'parent',
as defined in the
Children's Act, Act
38 of 2005;
The Applicant is entitled to
'parental rights and responsibilities', as specified in the said
Act; and
I am obliged to enter into
an agreement as envisaged in Section 23 of Act 38 of 2005.
96.3
Further in
the alternative, and only in the event that the application is
not
dismissed,
alternatively
stayed,
that the matter be referred to oral evidence."
The respondent did not seek any
counter-relief in the event of an order being granted
which declared the applicant to
be a co-holder of parental rights and responsibilities.
[18] On 17 May 2010 the matter
was postponed by agreement to 18 November
2010. Provision was made for the
interim relief granted to the applicant to remain of force and effect
and the respondent repeated
the recordals which she had made
regarding urgency and the like in the February 2010 order. The
parties also agreed that:
"3. The affidavits filed
by the parties shall stand as pleadings in this matter, subject to
the right of either party to supplement
and/or augment the pleadings
in accordance with the Rules of Court."
[19] On 18
November 2010 and by agreement the following issues were argued
in
limine
on
the basis of an exception:
whether the
respondent was entitled to rely on the exclusionary provision in
regard to the definition of a
'parent'
in
section 1
of the
Children's Act;
in
the event
that the court declared the applicant to be a
"parent"
with
full parental rights and responsibilities, whether the respondent
could be compelled to enter into a parenting plan with
the applicant
in respect of M.
[20] On 23
November 2010 I delivered judgment on the points
in
limine.
The
facts and circumstances giving rise to my findings are fully set out
therein and will thus not be repeated herein. I found that:
the
respondent was not entitled to rely on the exclusionary provision in
regard to the definition of a
"parent"
in
section 1
of the
Children's Act;
the
respondent could be compelled by the court to enter into a parenting
plan with the applicant in respect of M.
After some debate as to whether
this was still necessary, I also directed that the remaining issues
in dispute nonetheless still
be referred for the hearing of oral
evidence.
[21] As a consequence of those
orders, the parties agreed on 2 December 2010 ("the December
2010 order") that the matter
would be postponed to 8 March 2011
for the hearing of oral evidence in respect of the issues which
remained in dispute. Provision
was made in the order for the interim
relief contained in the February 2010 order to remain of force and
effect and provision was
made for contact between M and the parties
during the December 2010/January 2011 vacation.
[22] As a result of the
respondent's personal circumstances (she was expecting another child)
the matter did not proceed on 8 March
2011. On 16 March 2011 a
further order was granted by agreement postponing the hearing to 12
October 2011. The parties also agreed
therein upon a detailed and
comprehensive co-parenting arrangement and further provided for the
appointment of a facilitator with
specified powers to assist them in
resolving disputes which might arise out of that arrangement. It
should be noted however that
the parties agreed to the co-parenting
regime without prejudice to their respective rights.
ISSUES IN DISPUTE
[23] At the commencement of the
hearing on 12 October 2011 the respondent indicated that certain of
the main relief sought by the
applicant remained in dispute. As a
matter of convenience and due to certain wording and similar changes
contained in the March
2011 order, as compared to the provisions
contained in the applicant's notice of motion, the outstanding issues
were identified
in accordance with the March 2011 order. The
respondent indicated that the issues which remained in dispute were
as follows:
that the parties make joint
decisions in respect of certain aspects of M's life;
that M spend Thursday nights
with the applicant during term time (i.e. it was the respondent's
contention that M should only spend
alternate weekends with the
applicant during term time from a Friday afternoon until a Monday
morning);
that public holidays or
non-school days preceding or succeeding a weekend should be
incorporated therein;
that if either party or their
spouse were unable to care for M during a contact period, they would
first approach the other party
to ascertain their availability prior
to appointing a third party to care for him;
that neither party would
implement a decision regarding M's schooling or education without the
written consent of the other party,
which would not be unreasonably
withheld. In regard to this issue, the applicant subsequently
testified that this provision would
not need to be included in an
order if he was granted joint decision making powers in respect of
M's schooling;
that the parties should advise
each other timeously of school related and extra-mural events.
[24] Included
in the March 2011 order was a provision that during holidays the
applicant would not be entitled to have M with him
for a period of
longer than seven nights at a time. The applicant testified that he
would accept the
"seven
night rule"
in
respect of holidays on the basis that this was an issue which could
be determined by the facilitator in due course and need not
be
determined at the hearing of the matter, despite the fact that he did
not consider the seven night rule to be necessary. The
question of
M's primary residence had already been resolved at the commencement
of the November 2010 hearing when the applicant
conceded that M
should reside primarily with the respondent.
[25] All other aspects of the
co-parenting arrangement were agreed to by the respondent and are
accordingly incorporated in the
parent plan annexed to this judgment
and to which I will again refer below.
[26] The
applicant thus seeks an order detailing the manner in which the
parties' respective parental rights and responsibilities
in respect
of M should be exercised. In terms of the
Children's Act, this
has
been termed 'a
parent
plan'.
[27]
The
respondent's primary objection and opposition to the relief sought by
the applicant (other than her contention that he is not
entitled to
parental rights and responsibilities) is that she cannot be
'forced'
to
enter into a parent plan with the applicant on the basis sought by
him. In her affidavit she claims that she does not like the
applicant
and that she does not trust him and that in these circumstances she
should not be compelled to co-parent M with him.
It is thus
necessary, before considering the evidence, to sketch the background
to the current position of
'unmarried
fathers'
in
South African law.
[28] Prior to
the implementation of the Natural Fathers of Children Born out of
Wedlock Act, 86 of 1997
("the
Natural Fathers Act'),
such
fathers were obliged, in terms of the common law, to apply to the
High Court, as upper guardian of all minor children, to be
granted
rights in respect of a child born out of wedlock. In the event of
there being a dispute, the rights to be conferred on
such a father
and the manner in which these rights were to be exercised were
determined by the court. Such an order was essentially
a
'parent
plan'
setting
out how parental rights were to be exercised.
[29] With the
implementation of the Natural Fathers Act, these fathers were
afforded, by statute,
locus
standi
to
apply for certain rights in respect of their children born out of
wedlock. Again, in the event of there not being an agreement
with the
mother of the child, the court was required to determine which rights
should be granted to the father. Similarly, if there
was a dispute in
respect of the manner in which any of such rights were to be
exercised, the court made a determination and gave
an order setting
out the manner in which such rights were to be implemented; again, a
'plan'
setting
out how parental rights were to be exercised.
[30]
Section 21
of the
Children's Act similarly
makes provision for parents of children born
out of wedlock to agree upon a parent plan. Where the parties are not
able to agree
either directly or through mediation then either party
has the right to approach court in order to determine how their
parental
rights and responsibilities are to be exercised.
[31]
Accordingly, the provisions of
s 21
of the
Children's Act are
nothing
new: they simply serve to
'codify'
the
legal position which previously pertained. What is important to note
is that this is entirely consistent with the
'best
interests of the child'
principle
enshrined in the Constitution of the Republic of South Africa.
Section 28 of the Constitution stipulates that in all matters

concerning a child it is the
child's
best
interests which are paramount and that every child has
the
right to parental care
.
In my view those provisions recognise and moreover dictate that a
court as upper guardian of all minor children must place the

interests of the child and the rights of the child above those of his
or her parents. I will turn to this aspect again herein below.
[32] In the present matter the
respondent has always conceded that the applicant is a devoted father
to M and that M is equally
devoted to him.
[33] The respondent suggests
that because she does not want to co-parent M with the applicant,
there should be no order as to parental
rights and responsibilities.
This is tantamount to submitting that the High Court's jurisdiction
(in its capacity as upper guardian
of all minor children) must be
ousted, notwithstanding that the best interests of M might otherwise
dictate. It is in this respect
that the respondent's argument is
fatally flawed.
[34] Although the respondent
agreed to the March 2011 order with reservation of her rights, the
fact is that she agreed to the terms
of that order. As will appear
from what follows she subsequently declined to give any evidence at
the hearing or to file any further
affidavits. Accordingly she has
failed to explain why she agreed to the terms of that order in light
of her opposition to the application,
in what manner the
implementation of that order has not been in M's best interests and
on what basis she continues to oppose the
exercise of parental rights
and responsibilities being detailed in a court order.
[35] It should also be noted
that the respondent's husband, R V, who it seems has played a pivotal
role in this litigation and who
also deposed to an affidavit,
similarly declined to give evidence at the hearing.
[36] In fact it appears that the
opposition at the hearing to certain aspects of the relief sought by
the applicant was on a random
basis and that the purpose of pursuing
opposition of the matter was to subject the applicant to
cross-examination around the issue
of M's conception, an issue which
I had already found in November 2010 to be irrelevant to the issues
at hand.
[37] Before turning to the
evidence, and given that the respondent persisted, right up until
conclusion of final argument, in claiming
that the relief sought by
the applicant was not urgent and that he had adopted the incorrect
procedure, these aspects are dealt
with hereunder.
URGENCY
[38] With regard to urgency,
Rule 6(12) reads as follows:
'(a) In urgent applications a
court or a judge may dispense with the forms and service provided for
in these rules and may dispose
of such matter at such time and place
and in such manner and in accordance with such procedure (which shall
as far as practicable
be in terms of these rules) as to it seems
meet.
(b) In every affidavit or
petition filed in support of any application under paragraph (a) of
this sub-rule, the applicant shall
set forth explicitly the
circumstances which he avers render the matter urgent and the reasons
why he claims that he could not
be afforded substantial redress at a
hearing in due course.'
[39] The rule
entails two requirements, namely the circumstances relating to
urgency which have to be explicitly set out, and secondly
the reasons
why the applicant cannot be afforded substantial redress at a hearing
in due course: see
Eniram
(Pty) Limited v New Woodholme Hotel (Pty) Limited
1967
(2) SA 491
(E) at 493A-D;
I
L & B Marcow Caterers (Pty) Limited v Greatermans SA Limited and
Another, Aroma Inn (Pty) Limited v Hypermarkets (Pty) Limited
and
Another
1981
(4) SA 108
(C) at 110A-B, 110
in
fine
to
111A and
Salt
& Another v Smith
1991
(2) SA 186
(NHC) at187A-B.
[40] The applicant correctly
submits that the circumstances prevailing in February 2010 warranted
him approaching the court for
clarity on his parental rights and
responsibilities and for an order determining how such parental
rights and responsibilities
should be exercised.
[41] Further, the reasons for
seeking relief on an urgent basis were set out in the applicant's
founding affidavit and were reiterated
in his evidence. In his view
there were ongoing attempts on the part of the respondent and R V to
restrict his rights in respect
of and contact with M. That such
attempts were not always successful was as a result either of the
applicant refusing to give in
to such demands or the respondent
withdrawing a demand on the basis of expert advice. The refusal of
the respondent to attend mediation
and the fact that the December
2009/January 2010 school vacation was resolved only at a meeting
involving legal representatives
is indicative of the fact that the
parties could at that stage no longer make arrangements in respect of
M amicably. The respondent's
withdrawal from the assessment process
by Mr Altman was also a cause for concern to the applicant who wished
the assessment to
be completed in order to address M's best
interests. The respondent's opposing affidavit clearly displays her
attitude towards
the applicant: she was prepared to afford him
contact with M, but sought to retain control of the process. This was
the applicant's
very concern and illustrates that his belief that
arrangements in regard to M should be incorporated in an order of
court pending
finalisation of the disputes between the parties was
well grounded.
[42]
Provision is made in the
Children's Act for
matters pertaining to
children to be dealt with without delay. In Chapter 2,
('General
Principles)
it
is stated:
'6(4)
In any matter concerning a child -
an approach which is
conducive to conciliation and problem solving should be followed and
a confrontational approach should be
avoided; and
a delay in any action or
decision to be taken must be avoided as far as possible."
[43] On 26 February 2010 Cleaver
J entertained the application and after considering the papers and
hearing submissions from counsel
granted an order on an interim basis
which was substantially in the terms sought by the applicant. He
postponed the balance of
the relief for hearing on 17 May 2010, i.e.
less than three months thereafter. Had it been the view of Cleaver J
that the matter
did not warrant an urgent hearing, indeed he would
not have heard the matter.
[44] In any event a High Court
is empowered, in the exercise of its inherent
jurisdiction conferred by s 173
of the Constitution, to regulate its own procedure. This
includes the determination of
whether a matter should be regarded as urgent. The time
periods adopted in urgent
matters concern not the merits of those matters, but the
procedural
arrangements most appropriate to the matters. In
Commissioner,
SARS v
Hawker Air
Services (Pty) Ltd
[2006] ZASCA 51
;
2006
(4) SA 292
(SCA) at 299G-H the court said that:
'Urgency is a reason that may
justify deviation from the times and forms the rules prescribe. It
relates to form, not substance,
and is not a prerequisite to a claim
for substantive relief. Where an application is brought on the basis
of urgency, the rules
of court permit a court (or a judge in
chambers) to dispense with the forms and service usually required,
and to dispose of it
"as to it seems meet"'
This in effect permits an urgent
applicant, subject to the court's control, to forge his own rules.
[45] Section
173 of the Constitution provides that:
'The
Constitutional Court, Supreme Court of Appeal and High Courts have
the inherent power to protect and regulate their own process,
and to
develop the common law, taking into account the interests of
justice.'
Accordingly,
the only qualification on the exercise of a s 173 power is that a
court must take into account the interests of justice.
Given that
Cleaver J entertained and dealt with the matter on an urgent basis in
the exercise of his s 173 discretion, it is not
open to the
respondent to persist with her argument some 20 months later that
(somewhat startlingly in the particular circumstances
of this matter)
the application should be dismissed on that ground alone. And in any
event the Supreme Court of Appeal in the
Commissioner,
SARS
case
held that an application may not be
dismissed
for want of
urgency (at 299G-300A).
[46] At the
hearing in November 2010 I similarly exercised my discretion in terms
of s 173 and noted in the judgment which I gave
thereafter that:
"after
this court expressed the strong view that all matters concerning
children are, by their very nature, urgent, the respondent
did not
persist with this contention, as is apparent from the respondent's
heads of argument which were delivered after argument
on the first
day".
Accordingly,
it was entirely inappropriate for the respondent to have persisted in
cross-examination of the applicant on the issue
of the urgency of the
application. It was simply a waste of the court's time.
[47] In any event, in view of
the threats contained in the respondent's e-mail dated
1 February 2010, it is quite
clear that the respondent had no intention of entering into a
co-parenting
agreement -
"the
notion of us having a co-parenting agreement under the
circumstances
is ridiculous".
She
considered herself to be in a position to
"allow"
the
applicant to
have contact with M -
"I
have been impeccable in
allowing
you access
to
/W""(emphasis
supplied) - and she threatened the applicant by stating:
"I
have hidden the truth for long enough and should you continue with
this I will have to go public with everything as I cannot
have a
co-parenting relationship with you. M will eventually find out and
this will damage your relationship with him. You have
left me with no
choice as M is being emotionally scarred by what you are putting him
through. No woman who went through what I
did would consider a
co-parenting agreement under these circumstances. I want to focus on
my family and your continuous harassment
is suspect. You should
rather concentrate on your own family and M A."
(the
applicant's wife)
[48] In the circumstances, the
applicant's concerns that in the event of him not securing his
contact with M while awaiting the
determination of his parental
rights and responsibilities were certainly not without merit.
[49] There is
also no basis to suggest (as was put to the applicant) that because
agreement was reached between the parties in respect
of the December
2009/January 2010 vacation under threat of a court application, this
somehow bolstered the applicant to approach
court in February 2010.
On the contrary R V himself in his letter to Mr Altman on 30 November
2009 stated that the applicant would
have to apply for 7ega/
guardianship
through the High Court".
As
mentioned above the respondent also refused to attend mediation. It
thus cannot seriously be suggested that the applicant had
any option
but to approach the High Court to confirm that he is indeed a parent
as defined in the
Children's Act and
that he holds co-parental rights
and responsibilities in respect of M together with the respondent.
REFERRAL TO ORAL EVIDENCE
[50] The respondent contends
that the applicant should have proceeded by way of
action and
reserved
"the
right to argue the procedure by which the applicant
approached this Honourable
Court ".
[51] Despite her contention that
the applicant should have proceeded by way of action and not motion,
the matter was thereafter
and by agreement referred for the hearing
of oral evidence. And it has not been contended by the respondent
that she would have
testified at a trial commenced by way of action
despite her having declined to testify at the hearing of oral
evidence pursuant
to the application launched by the applicant.
[52] In
addition the applicant could not reasonably have foreseen the extent
to which the allegations contained in his founding
affidavit (in
particular about the history of the parties' co-parenting) would be
disputed by the respondent. And I have serious
doubts that the
disputes raised by the respondent in her opposing papers were
bona
fide
and
genuine. A dispute of fact disentitling an applicant to the relief
sought is not created by a respondent putting up a plethora
of facts
which, as proved to be the case in the present matter, are legally
irrelevant to the relief sought. To my mind, that the
respondent did
not advance a genuine dispute of fact is also evidenced by the
abundance of uncontested oral evidence to the contrary.
[53] In
regard to the question of giving evidence when matters are referred
to oral evidence, it is stated in Erasmus,
The
Commentary on Superior Court Practice
at
B1-51 that:
"Where
the application is referred to oral evidence, it can be justifiably
expected of the respondent, if he has any confidence
in his own
version, to reiterate that version in oral evidence and to submit
that version to be tested by cross-examination. Where
there is a
strong
prima
facie
case
in favour of the applicant at the close of his case, a Court is
entitled to draw an adverse inference against the respondent
should
he fail to testify in support of the allegation in his opposing
affidavit that the applicant has no case whatsoever."
[54] In
Humphrvs
v Lazer Transport Holdings Ltd
1994
(4) SA 388
(C) at 400D-F it was said that:
"Thirdly,
the Court
a
quo
drew
an adverse inference against appellant from his failure to testify.
Mr Hodes submitted that the Court erred in doing so. According
to Mr
Hodes, appellant's answer to the allegations by K was already a
matter of record in his opposing affidavit and it was thus
not
necessary for him to repeat his answer by way of oral evidence. We do
not agree with this argument. At the end of the respondents'
case
there was at least a strong
prima
facie
case
in their favour. On appellant's version in his opposing affidavit,
the respondents had no case for rectification whatsoever.
One of the
very reasons for referring the matter for the hearing of oral
evidence was the factual dispute regarding this aspect.
In these
circumstances, we believe, it could justifiably be expected of
appellant, if he had any confidence in his own version,
to reiterate
that version in oral evidence and to submit this version to be tested
by cross-examination."
[55] In
regard to the calling of witnesses, it was stated in
Galante
v Dickinson
1950
(2) SA 460
(A) at 464 and 465 that:
"In the case of the
party himself who is available, as was the defendant here, it seems
to me that the inference is, at least,
obvious and strong, that the
party and his legal advisors are satisfied that, although he was
obviously able to give material evidence
as to the cause of the
accident, he could not benefit and might well, because of the facts
known to himself, damage his case by
giving evidence and subjecting
himself to cross-examination."
And later:
"It is not advisable to
seek to lay down any general rule as to the effect that may properly
be given to the failure of a party
to give evidence on matters that
are unquestionably within his knowledge. But it seems fair at all
events to say that in an accident
case where the defendant himself
was the driver of the vehicle the driving of which the plaintiff
alleges was negligent and caused
the accident, the court is entitled,
in the absence of evidence from the defendant, to select out of the
alternative explanations
of the cause of the accident which are more
or less equally open on the evidence, that one which favours the
plaintiff as opposed
to the defendant."
[56] In
Venter
v Credit Guarantee Insurance Corporation of Africa Limited
[1996] ZASCA 50
;
1996
(3) SA 966
(A) at 980 Grosskopf JA stated (at 980B):
'In my
judgment the first plaintiff had done enough to establish at least a
prima
facie
case
-one which called for an explanation by the first defendant. That
explanation was not forthcoming. In the absence of any evidence
by or
on behalf of the first defendant that
prima
facie
case
became conclusive.'
[57] The applicant testified and
called two witnesses, his wife M A and a family friend Ms Osrin. The
applicant was cross-examined
for three days by the respondent's
counsel. His wife, M A, was not cross-examined at all and her
evidence stands uncontroverted.
Ms Osrin was cross-examined but her
evidence was unchallenged in all material respects. The respondent
closed her case without
giving evidence or calling any witnesses.
[58] From the
evaluation of the evidence which follows there is no doubt that the
applicant established a
prima
facie
case
in regard to the issues which still remained in dispute and that
indeed it was one which called for an explanation by the respondent.

It should be noted that when the respondent closed her case without
giving evidence or calling any witnesses, I pertinently drew
the
attention of her counsel to the risks which she faced. The respondent
nonetheless chose not to reopen her case.
[59] The
respondent seems to have adopted the tactic of
'attack
is the best form of defence'.
In
his closing argument the respondent's counsel focussed essentially on
two aspects. The first related to the procedure adopted
by the
applicant (i.e. urgent motion proceedings) which I have dealt with
above and which was nothing other than a
'red
herring'.
The
other was to attack the applicant's credibility arising out of the
three days of cross-examination to which he was subjected.
It was
submitted that the applicant was evasive and was an untruthful
witness who exaggerated or who was manipulative.
[60] I disagree. Whilst it
cannot be said that the applicant is eloquent and consistently
articulate, having had the opportunity
to observe him over a period
of four days in the witness box (including his evidence in chief) it
is clear that his tendency to
wander off the topic at hand is more a
reflection of his own personal style of communication than an attempt
to be evasive or untruthful.
For days he was cross-examined on
aspects which largely had nothing or little to do with the remaining
disputes between the parties.
Despite him being candid in his
evidence that he simply could not remember the detail of the night of
M's conception, the respondent's
counsel continued, undeterred, to
canvas the same ground over and over. In addition on numerous
occasions it was put to the applicant
that he had made certain
averments in his affidavits which it transpired he simply had not
made. The respondent appeared to have
lost sight of what issues
remained in dispute. And in respect of those aspects of the
cross-examination which indeed dealt with
the remaining issues in
dispute, the applicant impressed as an honest witness personally
invested in the relief sought: he loves
his son and wishes to have as
much influence in his life and contact with him as possible.
[61] The applicant sought, as a
caring and involved father against whom a serious allegation had been
made, to convey to the court
his concern for his son and his wish not
only to remain an involved father with regular contact with his son
but for his son to
retain what is an undisputed close and meaningful
relationship with the applicant, his wife and his half-siblings.
EVIDENCE CONCERNING ISSUES
IN DISPUTE Joint decision making
[62] It was
the applicant's undisputed evidence that he had always been a part of
M's life and had always contributed thereto, both
financially and
otherwise. By making joint decisions he would add value to M's life
as he and the respondent had different parenting
styles which were
both valid. He further stated that M looked up to him and that he
believed his input was important. When it was
put to him that the
respondent had indicated that a parent plan would create chaos and
that he would only become
'more
demanding',
the
applicant replied that since the March 2011 order no parenting issues
of any significance had arisen and that it had not been
necessary to
call upon the services of the facilitator at all. He indicated that a
slight dispute in respect of vacation contact
in June/July 2011 was
resolved between the parties by e-mail. The applicant stated that in
the event of there not being joint decisions
in regard to major
issues, this would potentially cause havoc as he could make one
decision and the respondent another, which would
in turn have an
adverse affect on M.
[63] As to the history of joint
decision-making, the applicant testified that:
63.1. In
regard to M's name, the respondent had consulted him and indicated
that she wished to call the child to be born, M. The
applicant
indicated that he was in agreement that M be so named. In
cross-examination, it was put to the applicant that there
had been
Very
little
discussion'
and
that it was in fact the respondent who chose the name M. The
applicant replied (and this was consistent with his evidence
in
chief) that the respondent had suggested M's name, that he
'loved
it'
and
that he had consequently agreed. This indeed constitutes a joint
decision, regardless of which parent originally suggested
the name.
63.2. In
regard to M's attendance at creche, the applicant testified that
again this was a joint decision, but that he had been
guided by the
respondent concerning an appropriate creche. In cross-examination it
was put to the applicant that he
'was
overstating'
the
part that he had played in decision-making. The applicant responded
that although he had little knowledge of creches and such
things and
although his input was limited, there was a discussion and he was
afforded the opportunity by the respondent to decide
jointly with
her on the choice of creche.
63.3. In regard to M being
christened in the Catholic Church and raised in the Catholic faith,
the applicant stated that he had
been fully involved in M's
christening and although he was not religious he was supportive of M
being raised in the Catholic
faith given that it was the
respondent's faith. This was clearly something which he and the
respondent had discussed and agreed
upon.
63.4. In regard to M's
enrolment at primary school, the applicant stated that he and the
respondent had considered various schools
and that application had
been made both to SACS and to Rondebosch Boys Primary School. He
stated that he and the respondent had
together attended the
interview with the headmaster at SACS and that as a result of the
interview had not pursued applications
at any other schools. It was
put to the applicant in cross-examination that no discussions had in
fact taken place and that the
joint interview with the headmaster
was a requirement of the school. The applicant replied that he had
indeed been involved in
the process and denied what was put to him
in regard to the joint interview. No evidence of such a requirement
was set out in
the respondent's affidavit and it is common cause
that no evidence was led on her behalf in this respect. The
applicant's knowledge
of the application process and the schools
considered is illustrative of his involvement in the process.
63.5. With
regard to decisions concerning M's medical treatment, the applicant
testified that both parties had been involved therein,
inter
alia,
certain
operations which M underwent and when M required emergency medical
attention after sustaining a laceration to his head.
The applicant
also stated that in regard to M being placed on Ritalin, although he
had wished this to be further investigated,
he respected the
respondent's view that the child should not be prescribed this
medication. In view of M
'doing
alright'
at
school he did not believe that it was an issue which should be
pursued. This is illustrative of the fact that the applicant
does
not pursue his own wishes or interests at the expense of M's as was
suggested to him in cross-examination.
63.6. The applicant also stated
that historically, weekday, weekend and vacation contact had been
agreed between the parties.
He acknowledged that when the parties
approached Carol Phillips, a social worker to whom the parties were
referred by clinical
psychologist Graham Alexander, the respondent's
boyfriend at the time, he was not initially happy with the structure
recommended
by Carol Phillips as it reduced the time that he spent
with M during the week in term time. However, he recognised that the
proposed
structure (which is the current contact structure during
term time) was in M's interests and provided a routine for him. The

applicant confirmed that this structure had been in place since M
was in Grade 1, in other words, for a period of five years.
[64] As to his involvement in
future decision-making in respect of schooling, it was asked of the
applicant during cross-examination
whether he had any reason to
believe that the respondent would remove M from SACS. The applicant
indicated that he hoped that
the respondent would not do so, but
that he had a concern in regard to her making unilateral decisions
given her attempts to
do so in respect of his Thursday contact with
M, the division of school vacations and her attempts to exclude him
from being
M's parent. The applicant testified that he believed that
he could add value to joint decision making in respect of subject
choices
for M as well as his extra-mural activities while at the
same time recognising the respondent's role, given that she had
different
attributes which he respected. There is no evidence to
suggest that the applicant has ever made or sought to make decisions
in
respect of M which are contrary to his interests. It appears that
it is rather the respondent's personal wish not to make decisions

together with the applicant than there being any suggestion that his
contribution to decision making would be contrary to M's
best
interests.
[65] In
regard to joint decision making on future contact, the applicant
testified that the respondent and her husband R V sought
to reduce
his contact to M both during term time and vacations. The applicant
also raised the issue of attending M's rugby matches
on weekends
when M was in the respondent's care. It was put to the applicant in
cross-examination that
in
fact
M
continued to spend Thursday nights with the applicant and that the
applicant had not been precluded from attending M's rugby
games. Of
course, the reason why the Thursday overnight contact had continued
was because the applicant had approached court
for an interim order
to that effect. As to the rugby matches, it was only on the advice
of Carol Phillips that the respondent
allowed the applicant to
continue to attend.
[66] Despite the respondent's
(somewhat hollow) protestations to the contrary in her opposing
affidavit the evidence clearly shows
that the parties have
successfully made joint decisions concerning M in the past and that
there is no sound reason why they should
not continue to do so, if
necessary with the assistance of the facilitator.
Thursday night sleepovers
[67] On 18
February 2009 R V had sent an e-mail to the applicant the subject of
which was
"Our
future structure regarding our relationship with you".
In
such e-mail R V stated,
inter
alia,
that:
'The foundation for children
to thrive is stability and structure. M is an intelligent child, but
gets distracted easily, for
this reason we want to implement a
situation where M has one home consistency. M will not be staying at
your house on Thursdays.
He will only be with you every second
weekend, we do not see the sense that his sleeping structure be
changed to give you access
of a couple of hours it makes no sense.
If you love your son you will not get involved in the EGO but see
what is good for him.
I hope to receive your support on this matter.
M will be with you every second weekend. I would like you to respect
our home
and also to encourage M to have a respectful relationship
with me as he is a fantastic child. I look forward to your support

of our process for the good of M.'
[68] It was
put to the applicant in cross-examination that the e-mail did not
'come
out of the blue'
as
the respondent had discussed this issue with him previously. The
applicant replied that the Thursday issue had arisen within
the
context of a discussion with Carol Phillips about a new routine for
M. It is common cause that this discussion took place
in 2007.
Accordingly the e-mail was indeed a shock to him. It was the
applicant's evidence that the only reason why the status
quo
regarding Thursdays has remained in place was because he was not
prepared to give in to the respondent's demands and had
taken steps
by way of this application to have his rights recognised and
defined.
[69] It was the applicant's
evidence that prior to M commencing Grade 1, he had spent one night
of each weekend (and on occasion
full weekends) as also a night or
nights during the week with the applicant. Since the time of the
meeting with Carol Phillips
in 2007, the routine has been that M
spends Thursday night in one week with the applicant and in the
alternate week the Thursday
overnight forms part of the weekend with
M being returned to school on a Monday morning. The applicant's
uncontested evidence
was that this is the regime to which M is
accustomed and that he has successfully adjusted to it. The
applicant assists M with
his homework on a Thursday in preparation
for school tests each Friday. The applicant also testified that
since he was a few
months old there has never been a time in M's
life (save obviously for those holiday periods when he is with the
respondent)
that he has not spent at least one night per week with
the applicant.
[70] It was also the
applicant's uncontested evidence that he has regular contact with
M's school teachers, that they are aware
of his involvement with M's
school work and that both in his view and due to feedback which he
has obtained, the input which
he gives is beneficial to M. The
applicant indicated that he did not seek to underestimate any
assistance which the respondent
provided to M in his school work,
but pointed out that save for the present time when the respondent
is on maternity leave, the
only day on which M is fetched early from
aftercare is a Thursday when the applicant fetches him, since the
respondent works
full time.
[71] The
applicant testified that it is important for M to have contact on a
Thursday with him, his wife M A as well as M's half-siblings.
It was
the applicant's evidence, and confirmed by M A in her evidence, that
the latter had discontinued attending book club as
M likes to have
his family together on a Thursday evening. It is also an important
consideration for his half-siblings, L and
S, given their close
relationship with M. The applicant said that in his view it would
negatively affect M (and his half-siblings)
if he did not have
Thursday afternoon and evening contact with the applicant and his
family. In her evidence, M A stated that
she believed that M would
be
'very
sad'
if
he was not able to continue to spend Thursday evenings with the
applicant and his family.
[72] In
cross-examination it was put to the applicant that as
'a
mother'
it
was understandable that the respondent would want
'her
child'
to
be at home with her during week nights. The applicant replied as
follows: 7
think
that if we had agreed to this it would have been terrible for M and
his brothers. It would be breaking up a consistency
that this child
has known for years and years. R V talks about "one home
consistency". M has always known two homes.'
[73] It is clear from the
evidence of both the applicant and his wife that it is in M's best
interests to continue overnighting
with the applicant on a Thursday,
given the benefits to him of having direct input from his father in
respect of his school work,
having contact with his step-siblings
and stepmother, and that there is no evidence whatsoever to suggest
the contrary.
Public Holidays
[74] The
applicant testified that since the implementation of the March 2011
order there had been no disputes between the parties
about M
spending a public holiday immediately preceding or succeeding a
party's scheduled contact weekend with him/her. It was
the
applicant's uncontroverted evidence that since the deterioration in
the parties' relationship the respondent has
"not
allowed"
these
public holidays or non-school days to be incorporated in a weekend,
it would appear, at her whim. The applicant and his
family regularly
go away for weekends (and holidays) and plan these away trips ahead
of time. Disruptions to these plans by the
respondent not only
affect M, but the whole family. The view which the applicant
expressed was that it was fair for M to be able
to spend alternate
public holidays with the parties and extended weekends with them
respectively when these arose. It seems to
me that there is no
reasonable basis as to why I should not grant this relief to the
applicant. It will provide certainty, not
only for the parties, but
in particular for M.
Care arrangements when a
parent or step-parent is away
[75] It was the applicant's
evidence that in his view should the respondent or R V not be in a
position to care for M during periods
of contact with the
respondent, he (i.e. the applicant) should be given the opportunity
to care for M and vice versa. There is
no evidence to suggest that
this is not reasonable or that such an arrangement would not be to
M's benefit, particularly since
the uncontested evidence is that M
is accustomed to moving easily between the parties' two homes.
Notification of school
events
[76] The applicant testified
that notification of school events was simply a practical measure to
ensure that both parties had
notice of all events which took place.
The applicant indicated that generally speaking the school contacted
both parties but
that certain events arose on short notice and one
or other parent might not be notified timeously as a result. Given
the respondent's
view that she wishes to minimise direct contact
with the applicant, it was also the applicant's evidence that e-mail
or sms contact
was all that was required. The applicant's wife M A
testified about an incident when M had become distressed by not
knowing whether
the applicant would attend his prize giving. It was
her evidence that both from a practical point of view and in M's
interests,
information in respect of such events should be
communicated by the parties to each other. In these circumstances I
see no reason
why the applicant should not be granted this relief.
THE RELATIONSHIP BETWEEN
THE PARTIES
[77] It was the applicant's
evidence that subsequent to it being established that he was in fact
M's father (on the basis of paternity
tests being conducted) he and
the respondent developed a co-operative parenting relationship. As
to the respondent's allegation
in her affidavit that he had harassed
her during her pregnancy, the applicant stated that this was not the
case given that he
had fairly limited contact with her during that
time. At that stage there was no certainty about M's paternity and
the applicant
was in the process of reconciling his relationship
with M A to whom he was subsequently married. Similarly, the
applicant denied
the allegation that the respondent was unhappy with
him visiting M at creche as alleged.
[78] The applicant testified
that indeed the relationship with the respondent had consolidated
subsequent to M's birth when M
A had approached her. It is common
cause that M A and the respondent had become firm friends. The
applicant referred to various
photographs showing the respondent's
involvement, together with him and M A, not only in events
particular to M, but also events
such as S's christening, L's
christening (where the respondent was appointed the sponsor),
Christmas and other family events.
[79] The
applicant stated that the respondent also went away on a weekend
with his family and other families to Onrus and had
spent two nights
in Umzumbe, KwaZulu-Natal with them during a family vacation. Both
the applicant and M A gave evidence about
the level of comfort which
the respondent displayed in their presence on these vacations,
inter
alia
(as
appears in the DVD clip discovered) drinking shots and encouraging
the applicant to do so. This evidence was not challenged.
[80] It was
also the applicant's uncontested evidence that the respondent was in
fact involved in discussions pertaining to issues
such as L's
schooling. M A gave evidence as to how the respondent referred to
herself as
'your
Annie'
to
L and that she would generally
'kick
off her shoes'
as
she walked in the door to their home, often making her own tea and
staying for a drink or supper with them when she fetched
M. It was
the evidence of both the applicant and M A that this was clearly not
required of the respondent, but was a mark of
the close and
comfortable friendship which had been established between the three
of them as well as with extended family members.
[81] It was also the evidence
of both the applicant and M A that the close relationship between
the three began deteriorating
when the respondent met R V. Both the
applicant and M A indicated that they had naturally anticipated
seeing less of the respondent
given her new relationship, but had
expected to have contact with both the respondent and R V as they
had done with the respondent
and her previous boyfriend, Graham
Alexander.
[82] It was
put to the applicant in cross-examination,
inter
alia,
that:
82.1. he was jealous of R V;
82.2. he was
aggrieved that the respondent was no longer "a
member
of his family",
82.3. he had feelings for the
respondent; and
82.4. he was
'paranoid'
about
R V's motives.
[83] It was the evidence of
both the applicant and M A that, whether coincidental or not, the
change in the good co-parenting
relationship and friendship between
the adults indeed coincided with the respondent becoming involved
with R V. It was the uncontested
evidence of Ms Osrin that the
respondent had told her in October 2007 that she had ended her
relationship with R V because she
found him to be domineering and
controlling and that he was interfering in the special relationship
which she had with the applicant
and his wife. Ms. Osrin said that
she had therefore been surprised when she had later heard that the
respondent had become engaged
to R V.
[84] Against this background,
for the respondent to have suggested (as she did) that the relief
which the applicant seeks stems
from his personal animosity towards
R V is without merit and is not substantiated by the evidence. It
seems that the opposite
is the case, namely that it is R V who is
unable to put aside his personal insecurities towards the applicant
and that this has
adversely influenced the respondent.
[85] There is simply no
substance to the respondent's allegations that she was ever in any
manner afraid of and/or uncomfortable
in the company of the
applicant. In fact, the evidence suggested quite the contrary.
[86] As
mentioned above the respondent elected not to give evidence about
the night of M's conception, to explain why she subsequently
went on
a date, alone, with a man who she now alleges raped her, why she
nonetheless involved him in M's life to the extent which
she did for
years, and why she elected to involve herself in the home and family
life of the applicant and M A when her
'reliance'
on
them as babysitters (given that she was a single mother) required no
more of her than to fetch M and drop him off at the door
of their
home. Indeed the totality of the evidence rather indicates that the
rape allegation was nothing more than a ruse concocted
by the
respondent in order to try to exclude the applicant from M's life.
And again it cannot be ignored that the breakdown of
the parties'
relationship coincided with the respondent becoming involved with R
V.
LEGAL PRINCIPLES IN
MATTERS PERTAINING TO CHILDREN
[87] In matters pertaining to
children, Section 28(2) of the Constitution reads as follows:
'2. A child's best interests
are of paramount importance in every matter concerning the child.'
[88] The concept that the
interests of the child are of paramount consideration is also
contained in Article 3(1) of the United
Nations Convention on the
rights of the child. The convention was adopted unanimously by the
general assembly of the United Nations
on 20 November 1989. South
Africa became a signatory to the convention on 29 January 1993 and
it was ratified by South Africa
on 16 June 1995.
[89] The
'best
interests of the child'
principle
has underpinned both statutory provisions pertaining to children as
well as our case law and is retained in the Children's
Act. In fact,
the
Children's Act goes
further and places significant emphasis on
child participation in decisions in respect of their care and
wellbeing.
[90] It was
stated in
Terblanche
v Terblanche
1992
(1) SA 502
(W) at 504C-D that the court has
'extremely
wide powers in establishing what is in the best interests of minor
or dependent children. It is not bound by procedural
strictures or
by the limitations of the evidence presented or contentions advanced
by the respective parties. It may in fact
have recourse to any
source of information, of whatever nature, which may be able to
assist it in resolving custody and related
disputes'.
[91 ] In
September
v Karriem
1959
(3) SA 687
(C) at 689A Herbstein, A J P stated:
'If the Court is of the
opinion that it should interfere with the rights of the parents,
because the interests of the children
demand such interference, it
should be at large to act in the manner best fitted to further such
interests.'
He stated
further
'It
seems to me that the Court as upper guardian should be given as
complete a picture of the child and its needs as possible.
Nothing
of relevance should be excluded. For while certain aspects taken
separately might appear to be of no real importance,
in combination
they might build up a strong case in favour of one or other
conclusion.'
[92] In
e
v
S
1995
(3) SA 571 (A) at 581 A, Howie JA referred to Re
KD
(a minor)(ward: termination of access)
[1998]
1 All ER 577
(HL) at 588g-j, and quoted with approval:
'Parenthood, in most
civilised societies, is generally conceived 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 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.'
And further (in reference to
rights of contact), that:
'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.'
[93] In
Bobera's
Law of Persons
at
page 319 footnote 17 it is stated that:
'It has long been recognised
in South Africa that the parental power (or "natural
guardianship") is in fact concerned
more with duties and
responsibilities of parents than with parents' rights and powers -
the modern emphasis in this regard being
on the rights and interests
of children rather than parents'.
[94] The law is thus clear: it
is the interests of the child which are paramount in all matters
concerning a child and the interests
of the child take preference
over the interests of the parents. No evidence was placed before me
to indicate that the relief
sought by the applicant is not in M's
best interests. The thrust of the respondent's evidence (on
affidavit) pertains to her
wish not to co-parent M with the
applicant, rather than that the relief sought by the applicant is
not in M's best interests.
[95] In this matter, the
respondent has now adopted the stance that she does not wish to
co-parent M with the applicant: this
after, on her own version,
facilitating the applicant's involvement in M's life to a
significant degree since the time of his
birth. It is not now open
to the respondent, in the absence of the applicant failing to act in
M's best interests, to simply
elect not to co-parent with him. This
would simply serve to lend the lie to our established legal
principles that where arrangements
are inconvenient to a parent or
parents but serve a child's best interests, then that inconvenience
is outweighed by the interests
of the child.
[96] In
South Africa, and sadly by virtue of its appalling history of human
rights failures and the consequent legacy of social
and societal
disadvantages, it seems to me that the protection and promotion of
the rights of children is all important. When
these most vulnerable
members of our society are protected by our courts so that they can
have,
inter
alia,
proper
parental care it will follow (at least in the majority of cases)
that as adults they will in turn inculcate the same values
in their
own children. If we
'get
it right'
with
our children we will be making a valuable contribution to our
constitutional vision of a society based on human dignity,
rights
and freedoms.
[97] M is a child who, unlike
countless others in our society, has two parents who are equally
devoted to him. To deprive M of
his father's continued involvement
in his life because of the respondent's recently acquired dislike
for him would result in
a miscarriage of justice.
[98] Accordingly, in all the
circumstances of this matter, I am satisfied that the applicant is
entitled to the relief sought
by him on all of the outstanding
issues between the parties, save in respect of costs which I deal
with hereunder.
COSTS
[99] It has
been held that in disputes relating to children, it may not be
appropriate to make a costs order adverse to either
party because of
the predominant interests of the child involved. King J (as he then
was) in
McCall
v McCall
1994
(3) SA 201
(CPD) at 209B-C stated:
"As I have said, both
parents have, in contesting this case, acted in what they believed
to be in the best interests of their
child. There is no winner and
no loser. There are two concerned parents. I intend to make no order
as to costs. The effect of
this is that each party will bear their
own costs."
[100] In
Bethell
v Bland & Others
1996
(4) 472 (W) at 475E-I Wunsch J considered that the correct approach
would be that generally speaking a successful litigant
would be
entitled to his or her costs. He states further:
"1. Generally speaking,
a successful litigant is entitled to his or her costs.
2. While it is quite true
that a custody dispute should not be seen as an adversarial contest
in the ordinary sense but rather
as an enquiry into the best
interests of the child, it cannot be denied that in most cases the
litigants are advancing their
own preferences and seeking
satisfaction of their love of the child. Often, too, the papers
contain many attacks on the character
and conduct of the opponents.
3. On the other hand it is
also a consideration that a party should not be discouraged from
putting up a case which he or she,
on broadly reasonable grounds,
thinks to be in the interests of the child for fear of having costs
awarded against him or her
if unsuccessful. By the same token, a
party who is, on what turn out to be good grounds, confident that
his or her case will
prevail, should not be discouraged from taking
or resisting actions because of the costs which he or she will
incur.
4. However bona fide and
concerned a party may be, if his or her opponent's judgment of the
issue prevails, it is not, in the
absence of circumstances
justifying it, fair that the opponent should be mulcted in his or
her own costs."
[101] In
regard to the points
in
limine
argued
in November 2010, the applicant was successful on both issues and
the respondent should bear his costs. There are no circumstances

which would justify a departure from the usual approach to costs,
despite this being a matter involving a child. In fact, the
very
nature of the opposition and the issues raised
in
limine
by
the respondent warrant a costs order being made against her. There
is nothing in the respondent's affidavit, nor was any evidence

adduced on her behalf, which supports her allegation of rape: in
fact the oral evidence of the applicant, his wife M A and Ms
Osrin
demonstrated quite the opposite.
[102] For years the respondent
had a close relationship with the applicant, his wife and extended
members of the family, which
relationship she at one time sought to
protect. She chose to spend time with them, she treated their home
as her own and co-parented
M with the applicant whom, she
demonstrated through her actions, she trusted and respected. The
allegation of rape cannot be
sustained and the inescapable
conclusion is that the only purpose of that allegation was to
exclude the applicant from M's life
save on terms acceptable to the
respondent. Accordingly in the circumstances of this matter a costs
order in favour of the applicant
is the only fair and equitable
order to be made, save for the costs in respect of the dispute
pertaining to M's primary residence.
The applicant only conceded at
the commencement of the hearing in November 2010 that M should
continue to have his primary residence
with the respondent. It seems
to be equally fair that the costs relating to the dispute over M's
primary residence should thus
be borne by the applicant.
[103] Being mindful of the
practical difficulties which the parties and the taxing master will
face in determining which costs
pertain to the primary residency
dispute, and without adopting an overly-technical approach, having
regard to the various affidavits
filed it seems to me that it would
be just and equitable in the net result to thus award the applicant
80% of his costs incurred
prior to the November 2010 hearing.
[104] As to the disputes
referred to oral evidence, the respondent only conceded that very
limited issues still remained in dispute
on the first day of the
hearing. It also seemed that these were selected in a random fashion
and were designed to enable the
respondent to subject the applicant
to cross-examination largely on irrelevant issues about M's
conception.
[105] The applicant was obliged
to incur the costs of five court days in circumstances where it now
appears that there was probably
never any intention on the part of
the respondent to put her version before the court. In these
circumstances there is no reason
why the respondent should not also
pay the costs of the October 2011 hearing.
[106] The parties have agreed
that in respect of the interlocutory application, each should bear
his/her own costs.
CONCLUSION
[107]
In
the result I make the following order:
'1. The applicant
succeeds on the merits in respect of all of the outstanding issues
between the parties.
2. The
parties shall exercise their parental responsibilities and rights in
respect of their minor child, M, in accordance with
the Parent Plan
annexed hereto marked
"X".
3. The respondent shall
bear 80% of the applicant's party and party costs incurred prior to
the November 2010 hearing, including
all reserved costs orders. The
costs of the November 2010 hearing (including the costs of two
counsel in respect of appearance
and preparation therefor) together
with all further reserved costs orders, and the costs of the October
2011 hearing, shall be
borne by the respondent on a scale as between
party and party.
4. In respect of the
interlocutory application under case number 12660/2010 there shall
be no order as to costs.
5. In
the event that this judgment and/or the Parent Plan annexed hereto
is published in any manner (whether electronically or
otherwise) the
reference to the names of the parties and the minor child shall be
reflected in such a manner that they cannot
be identified.
J I CLOETE
IN THE
HIGH COURT OF SOUTH AFRICA
ANNEXURE
"X"
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
In the matter between:
CASE NUMBER: 2901/2010
M A M
Applicant
and
A V (born
N)
Respondent
PARENT PLAN
1. The
parties are declared to be co-holders of parental responsibilities
and rights in respect of their minor child
M
J N
born
on 23 May 2000 ("M"), including rights of co-guardianship
as provided for in sections 18(2)(c), 18(3), 18(4) and
18(5) of the
Children's Act 38 of 2005 ("the
Children's Act&quot
;) and rights
of care and contact as referred to in
section 18(2)(a)
and (b) of the
aforesaid Act subject to the provisions set out below.
2. The parties' co-parental
responsibilities and rights in respect of M shall be exercised as
follows:
2.1 M shall reside primarily
with the respondent.
2.2. The parties shall make
joint decisions in relation to the following aspects of M's life
only:
(a) major decisions about his
schooling (including any change and/or choice of school, after-care
facility, tertiary institution)
and tertiary education; including
choices of educational subjects and extra-mural activities;
(b) major decisions about his
medical care, including any mental health issues, elective medical
treatment that may be required
by M, but which shall not include his
day to day medical care or emergency treatment. M will not be placed
on Ritalin unless the
parties agree otherwise;
(c) major decisions about his
religious and spiritual upbringing including any significant change
in regard to M's upbringing relating
to religious beliefs, cultural
or traditional values;
(d) decisions in respect of any
change in his residency (in the Republic of South Africa) which will
impact on the applicant's contact
with M;
(e) decisions affecting any
change in the regime regulating contact between M and the applicant;
(f) decisions which are likely
to significantly change M's living conditions or to have an adverse
effect on his wellbeing.
3. Decisions affecting M's every
day care and routine shall be made by the party in whose care M is a
the relevant time.
4. The applicant shall have
contact with M as follows:
Contact
during school term
4.1. M shall spend each
alternate weekend from a Thursday after school until the following
Monday morning when he is returned to
school, with the applicant;
4.2. In the alternate week M
shall spend from Thursday after school until the Friday morning when
he is returned to school, with
the applicant.
Contact during vacations
4.3. M shall spend each
alternate April and September vacation in each year with each party.
Accordingly, should M spend the April
school vacation with one party
in one year, then he shall spend the September vacation in such year
with the other party. Subject
to any directive to the contrary by the
facilitator referred to hereunder, should any such vacation be longer
than 7 nights then
the balance of such vacation shall be spent with
the other party. If the vacation is more than 14 nights, then the
further nights
shall be spent with the original party;
4.4. M shall spend each
alternate Easter weekend with the applicant;
4.5. M shall spend one half of
the June/July vacation in each year with each party. Subject to any
directive to the contrary by
the facilitator referred to hereunder,
the vacation shall be divided on the basis that M spends blocks of 7
nights with the applicant;
4.6. The December/January
vacation shall be divided each year so as to ensure that M spends
each alternate Christmas (until 09h00
on 26 December) with each
party. M shall spend Christmas 2011 with the respondent. Subject to
any directive to the contrary by
the facilitator referred to
hereunder, the December/January vacation shall be divided equally on
the basis that M spends blocks
of 7 nights with the applicant;
4.7. In regard to the June/July
and December/January vacations, the respondent shall provide the
applicant with a proposed schedule
in respect of such vacations 2
months prior to the vacation in question, setting out when she is
able to take leave and proposed
dates for contact. The applicant
shall revert within 2 weeks of receiving such proposal. In the event
of agreement not being reached,
the parties shall approach the
facilitator.
Other contact provisions
4.8. Both
parties shall have the right to attend school functions, school
related events and extra-mural activities in which M participates

(without requiring interaction between the parties) whether during
their contact period or not;
4.9. In the event of a public
holiday or non-school day preceding or succeeding a weekend, the
public holiday shall be incorporated
in the weekend;
4.10. M shall have the right to
spend Mother's Day with the respondent and Father's Day with the
applicant respectively, from 09h00
on the Sunday until M is returned
to school the following morning;
4.11. In respect of M's
birthday, M shall be entitled to spend alternate birthdays with each
party with M's next birthday being
with the applicant. Both parties
shall ensure that M's siblings are invited to any birthday parties
which he may have with either
parent, should M so request;
4.12. M shall be entitled to
spend a reasonable period of time with his siblings on their
birthdays or attending their birthday
celebrations provided that this
falls on a weekend and further does not unduly interfere with either
party's holiday or contact
arrangements;
4.13. The parties shall be
entitled to have telephonic and e-mail contact when necessary with M
when he is with the other party
provided that it is at reasonable
times. M shall have the right to contact the parties telephonically
and by e-mail at reasonable
times.
5. Should either party or their
spouse not be able to care for M during their respective contact
periods, they shall first approach
the other party to ascertain their
availability prior to appointing a third party to care for him.
6. Any school which M attends
shall be informed (by either party) that:
6.1. Both parties are entitled
to discuss issues relating to M directly with any teacher/educator
concerned. The parties shall limit
the subject of such discussions to
M and M's best interests only. No discussion about the other party or
his or her attitude or
conduct will be held with the
teacher/educator;
6.2. Both parties are entitled
to receive school reports and assessments;
6.3. Both parties are entitled
to attend upon all school related events and extra-mural activities.
7. The parties shall, where
reasonable practicable, advise the other party timeously of all
school related events and extra-mural
activities in which M may be
involved, including, but not limited to, all Parent/Teacher
Association meetings and sporting and
cultural activities engaged in
by M, on the basis that the parties shall not be obliged to attend
any meeting with a teacher with
the other party.
8. In order to facilitate the
resolution of any disputes arising from this Order, Adv Patsi Weyer
SC shall continue to act as facilitator.
8.1. Failing her, the
facilitator shall be an advocate with at least 10 years of
experience, conversant with working with children
and families and
shall be appointed by agreement, failing which either party may
approach the chairperson for the time being of
the Cape Bar Council
to appoint such a facilitator.
8.2. The powers and duties of
the facilitator shall be in accordance with the provisions of
Annexure "A" hereto.
BY ORDER OF THE COURT
COURT REGISTRAR
Annexure "A"
Powers and Duties of the
Facilitator
1. The facilitator shall
continue to act until he/she resigns, or both parties agree in
writing that his/her appointment shall be
terminated, or his/her
appointment is terminated by an order of the High Court. Neither
party may initiate Court proceedings for
the removal of the
facilitator or to bring to the Court's attention any grievances
regarding the performance or actions of the
facilitator without first
meeting and conferring with the facilitator in an effort to resolve
the grievance.
2. If the parties are unable to
reach agreement on any issue concerning applicant's contact with M or
any issue in respect of M's
bests interests including any issue where
a joint decision is required in respect of M, the dispute shall be
formulated in writing
(if so required by the facilitator) and
referred to the facilitator. The facilitator shall attempt to resolve
the dispute by way
of mediation, subject to what is set out below, as
speedily as possible and without recourse to litigation.
3. If the facilitator, in the
exercise of his/her sole discretion, regards a particular issue
raised by one of the parties as trivial
or unfounded, he/she is
authorized to decline the referral of such issue.
4. If the facilitator is unable
to resolve a dispute by way of mediation he/she may resolve the
dispute by issuing a directive which
shall be binding on the parties
subject to the provisions herein.
5. Each party and M (if
necessary) shall participate in the dispute resolution process as
requested by the facilitator.
6. The facilitator shall use
his/her discretion in considering the weight and sufficiency of
information provided and may expand
his/her enquiry as he/she may
deem necessary. The facilitator shall have the authority to gather
information through interviews,
correspondence, email, telephonic
and/or other informal means, and to make his/her recommendations upon
the information provided
and obtained.
7. No record need be kept,
except of the findings, decisions and recommendations of the
facilitator and the grounds therefore. No
information or observations
of the facilitator or communications made by the facilitator shall be
deemed to be privileged as to
the Court, the participants, their
legal representatives and experts or any mental health professional
assessing or treating M.
8. The facilitator shall
determine the protocol of all communications, interviews and
sessions, including who shall or may attend
meetings. Legal
representatives are not entitled to attend such meetings, but a party
shall be permitted to caucus with his or
her legal representatives,
either in person or by telephone, during such meetings. The parties
and their attorneys shall have the
right to initiate or receive oral
communication with the facilitator. Any party or counsellor may
communicate in writing with the
facilitator provided that copies are
provided to the other party, and if applicable, their legal
representatives.
9. The facilitator may confer
individually with the parties and with others, including step-family
members, extended family members
and friends, permanent life
partners, household members, school and educational personnel, care
providers, healthcare providers
for M and therapists for him and the
parties, and the parties shall authorise such persons to provide
information to the facilitators.
10. The facilitator is
authorised to appoint such other person as may be necessary in order
for the facilitator to make a decision
in respect of the issue in
dispute, including the appointment of experts if he/she deems it
appropriate or necessary, but provided
that the costs of such
expert/s are first canvassed with the parties and appropriate
arrangements for the payment of such costs
are made.
11. The
facilitator is
inter
alia
authorised
to:
(a) facilitate joint decisions
in respect of M having regard to his best interests;
(b) regulate, facilitate and
review the contact arrangements in respect of M having regard to his
best interests;
(c) issue directives binding on
the parties on any issue concerning M's welfare and/or affecting his
best interests (subject to
a Court of competent jurisdiction holding
that such directive is not in M's best interests);
(d) resolve conflicts relating
to the clarification, implementation and adaption of the parent plan
or any subsequent parental responsibilities
and rights agreement
having regard to M's best interests;
(e) refer the parties and/or M
for psychological evaluations or assessments.
12. The facilitator's services
include elements of mediation, expert opinion, counselling and
arbitration, but do not purely fall
into any of these categories. The
facilitator is not appointed as psychotherapist or counsellor for M
or the parties. All participants,
including the facilitator, the
parties and legal representatives, shall use their best efforts to
preserve the privacy of the family
and, more particularly, M and
restrict dissemination of information related to decisions to those
who need to know the information.
13. The facilitator may proceed
with the facilitation in the absence of a party and shall be entitled
to make a decision (which
shall be binding on both parties as if they
had both participated in such facilitation until such decision has
been varied by a
court of competent jurisdiction) in the event that a
party:
(a) fails to participate in any
facilitation despite having been requested to do so by the
facilitator; or
(b) fails to attend a
facilitation session; or
(c) fails to reply to the
facilitator's communications within 5 (five) days, which
communications may be by telephone, email or
fax, or
(d) fails to pay the
facilitator's costs upon request, or
(e) fails to co-operate with the
facilitation process in any other way.
14. The parties shall each be
liable for 50% of the costs of the facilitator (save for the cost of
email, fax and telephonic communication
with the facilitator, which
shall be borne by the relevant party), unless otherwise determined
by the facilitator. The facilitator
may order a party against whom a
ruling has been made to refund the costs of facilitation, or part
thereof, to the other party.