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[2012] ZAWCHC 322
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S.P.P v C.P (15992/2012) [2012] ZAWCHC 322 (21 September 2012)
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
Case Number: 15992/2012
In the matter between:
S P P
..........................................................................................................
Applicant
And
C P
.........................................................................................................
Respondent
JUDGMENT DELIVERED ON
FRIDAY 21 SEPTEMBER 2012
Baartman,J
[1] This
application concerns the best interest of 11-year-old M D P
(the
minor).
The parties are married and
the minor’s natural parents. Until 6 August 2012, the couple
lived together in the Strand, however,
on that date without prior
notice to the applicant, the respondent moved to the Free State with
the minor.
[2] In this
application, the applicant seeks the return of the minor to Cape Town
in order for this court to determine what would
be in the minor’s
best interest. At the time of her removal, the minor was a grade 5
pupil who excelled in both academic
and social activities.
The
applicant alleged that the manner in which the respondent had moved
the minor had been traumatic for her because she had not
even been
given the opportunity to say goodbye to her best friend at school. He
further alleged that the abrupt move mid-year had
been detrimental to
the minor’s educational needs.
[3] On 30 August
2012,1 postponed the matter to allow Dr Mathilda Smit
(Smit),
a social worker, an opportunity to
compile a report and make a recommendation concerning the best
interest of the minor in respect
of her care, contact and schooling.
At the time, the respondent and the minor, were living with the
respondents brother in Frankfort
in the Free State. The respondent
indicated that the arrangement was temporary and that she intended to
obtain separate accommodation
for the minor and her. The respondents
parents live in Dewetsdorp in the Free State approximately 600
kilometres away.
[4] It is common cause that the
applicant issued divorce summons on 14 August 2012. The respondent
has expressed a firm intention
to remain in the Free State and
suggests that it would be in the minor's best interest to remain with
her.
[5] In her report, which was made
available on 19 September, Smit suggested that the minor return to
Cape Town. She further suggested
that a clinical psychologist should
consult with both parties and prepare a relevant report before a
decision is made in respect
of the minor’s future. The parties
have agreed, albeit the respondent reluctantly, that the report
suggested by Smit be compiled.
[6] However, the respondent indicated
that she would also be placing a further social worker's report
before the court, the purpose
of which would be to gainsay the Smit
recommendation. In my view, the psychologists report recommended by
Smit would assist a court
in making an order to ensure the minor's
best interest is met. It is in issue whether the minor should remain
in the Free State
pending the finalisation of these reports.
THE MINOR SHOULD
RETURN TO CAPE TOWN
[7] Before her removal the minor
attended ‘Primere Skool Gordonsbaai’. As indicated above
she was in grade 5 and was
excelling. In his founding papers, the
respondent described her achievements as follows:
“
10.2 Buiten dat sy
akademies briljant preste$r, is sy ook ‘n leier en staan ‘n
goeie kans om as Dux-ieerling en seifs
hoofmeisie aangewys te word
vir Graad 7-jaar. Sy het verlede jaar 9 boekpryse by die
prysuitdeling gekry...
[8] Her achievements at the Gordon’s
Bay school include 95% for Maths and 92% for Science in 2011. The
respondent confirmed
these achievements but. indicated that the
minor was doing equally well at her new school in Frankfort in the
Free State.
[9] In consultation with Smit, the
minor indicated that the respondent had discussed the possibility of
moving to the Free State
with her prior to their departure. On the
day of the move, the respondent and her mother (maternal grandmother
who at the time
resided in the Free State) collected the minor from
school. She then learnt that she was on her way to the Free State,
which
came as a surprise. Smit said the following about the minor’s
view on the move in consultation with her:
“
Para: 4.2.1.5 Ekspioreer
oor die vertrek vanuit die Kaap op 6 Augustus: Margot vertef dat
haar ouma (mateme ouma-“ouma Marie”)
van daardie dag sou
kom kuier en toe kom haal haar ouma en haar ma haar by die skool.
Haar ma het vir die skool gese hulle gaan
nou terug Vrystaat toe.
Volgens Margot was sy ‘n bietjie verbaas en het haar ma nie
die oggend iets gese nie. Haar ma het
wel vantevore al met haar
daaroor gepraat dat hulle dalk kan weggaan. Margot het nie geweet
dat hulle daardie dag sou gaan nie.
Sy het nie haar maats gegroet
nie (Margot het weer trane in die oe gekry). Op die vraag of sy haar
pa gegroet het was haar antwoord:
‘As ons hom sou groet sou hy
ons nie laat gaan het nie, hy is baie lief virmy’.”
[10] Despite the respondent’s
allegations to the contrary, I am of the view that the minor was not
prepared for the move
when it happened. The respondent alleged that
she had fled the common home because she was the victim of domestic
violence. I
accept that the applicant assaulted the respondent
during the course of the marriage. Unfortunately, the respondent did
not seek
the protection available to her through the appropriate
legislative means; instead, she fled. In so doing she has pre-empted
a court decision in respect of the minor’s primary residence.
It remains this court’s duty to enquire into the best
interest
of the minor.
[11] It is common cause that the
applicant has never displayed any violent behaviour towards the
minor, in.her consultation with
Smit she expressed her affection for
both her parents. She said:
".........
4.2.1.1
Margot het aangedui dat sy met beide haar pa en haar ma ‘n
hegte binding het en dat sy emosioneel albei haar ouers
in haar
emosionele leefwereld plaas. Sy blyk ook albei haar ouers te
vertrou. Huidig identifiseer sy sterker met haar ma en beleef
dat
sy
meer ingestel is op haar ma.
Sy noem by herhaling dat sy nie daarvan hou as haar pa kwaai is met
haar ma nie. Dit laat haar bang
voel. Hierdie gedrag van haar pa
teenoor haar ma kan haar gevoelens jeens haar pa negatief be'fnvloed
omrede Margot in wese ‘n
vredemaker is en glad nie van enige
aggressie of konflik hou nie.
”
[12] In addition, the respondent
indicated that the applicant, who has apparently told the minor that
he might seek employment
in the Free State, would be able to have
the minor with him at weekends and in the holidays in the event of
that happening. "...
Sy kan dan naweke en vakansies na hom toe
gaan.” It follows that the respondent foresees no harm to the
minor in the company
of the applicant. The applicant holds a
different view in respect of the minor’s safety in her present
abode. He indicated
that the respondent had been sexually molested
and raped by her brother who currently resides in. Paarl. The
respondent’s
parents were aware of the sexual assault but did
not act to protect her. In her opposing .papers, the respondent
denied the allegations,
however, in her consultation with Smit she
admitted that she had been molested, by her brother. This is not the
brother with
whom she currently resides. Despite the geographical
distance between the respondent and her brother, the applicant
remains concerned
for the minor’s safety. He has reservations
about the respondent’s ability to protect the minor should her
brother
from Paarl visit.
[13] The parties have further made
allegations about inappropriate sexual behaviour against each other.
It appears from the papers
that the parties engaged in unsavoury
sexual practices during the course of their marriage. The minor was
not exposed to her
parent’s deviant sexual practices, although
Smit said the following in this respect:
“
5.7 Kommer heers oor Mev
Pauls se vermoe om Margot te beskerm teen seksuele wanpraktyke. Geen
sekerheid bestaan oor wat die effek
van Mev Pauls se
e/e
situasie as
slagoffer op haar seksuele ontwikkeling gehad het nie. Terselfdertyd
heers kommer oor Mnr Pauls se “oplossings”
vir die
seksuele bevrediging in sy huwelik
[14] The minor
has indicated to Smit that she would prefer to stay with the
respondent. In giving effect to the minor’s
expressed
preference, it is important to assess her emotional maturity. She is
11 years old and it is apparent from the papers
that both parties
have tried to influence
her. I am not persuaded that the
minor is currently able to express a
genuine
preference. (See
McCall v McCall
1994 (3) SA 201
(C)).
[15] The applicant has offered the
former common home to the respondent should she elect to accompany
the minor to Cape Town in
the event of a court ordering her return.
Alternatively, he has suggested that his mother, I P, who has
attested to an affidavit
in agreement, live in the home with the
minor.. The respondent’s counsel has submitted that it would
be absurd to remove
the minor from her mother to live with her
grandmother especially, so the argument went, since the applicant is
at work during
the day and the respondent not. That submission loses
sight of the fact that the minor would be at school during the day.
She
would be in no different a position than many children her age
whose: parents work. In addition, the respondent has been a house
wife until now but since she is about to be divorced, she will also
have to find employment.
[16] In my view, the available
evidence suggests that it would be in the minor’s best
interest to return to Cape Town pending
a final decision in this
matter. I intend to order that the applicant vacate the common home
in the event that the respondent
should elect to return with the
minor. In that eventuality, the applicant should also refrain from
visiting the common home pending
finalisation of this matter. Should
the respondent elect not to return, I P, the paternal grandmother,
will stay in the common
home with the applicant and the minor child.
CONCLUSION
[17] I, for the reasons stated above
make the order as per “X” annexed hereto.
Baartman J
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
On Friday: 21 September 2012
Before: The Honourable Justice E.
Baartman
Case Number: 15992/2012
In the matter between:
Steven Phillips Pauls Applicant
And
Caria Pauls Respondent
ORDER
Having heard counsel for the parties
and having read the papers filed of record:
IT IS ORDERED THAT
[1] The matter is postponed to 10
December 2012.
[2] The
respondent must return the minor child, Margot Donne Pauls
(the
minor"),
to the Strand by 3
October 2012. The applicant will carry; the costs associated with
the relocation. The minor will primarily
reside in the former common
home with the respondent should the respondent choose to accompany
the minor.
[3] If she does, the applicant must
vacate the common home before the respondent takes up occupation.
The applicant must refrain
from entering the common home pending the
return date.
[4] The applicant may have contact
with. the minor every alternate weekend pending the return date.
Contact arrangements must
be made through the Office of the Family
Advocate.
[5] Alternatively, in the event the
respondent does not accompany the minor, the minor will reside at
the common .home with the
applicant and his mother, Mrs Isabel
Pauls.
[6] The parties must appoint an
expert, for the applicant’s account, in accordance with
recommendations made in paragraphs
6.2 and 6.3 of Dr Mathilda Smit’s
report dated 13 September 2012.
[7] The relevant offices of the
Family Advocate are directed compile a report in respect of the best
interests of the minor.
[8] The respondent may file in good
time any further expert report should she wish to do so.
BY ORDER OF COURT
COURT REGISTRAR