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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH)

 

CASE NO.:  3132/17   

 

In the matter between:

 

BASHIER KAPERY

Applicant

 

and

 

FARAH SNYMAN

Respondent

JUDGMENT

AH SHENE AJ

Introduction

[1]        The applicant, having obtained an interim order on 29 March 2018, now seeks final relief, relating to parental rights and responsibilities in respect of their children being “Y”, a boy born on 16 April 2012 and a girl, “I”, born on 17 January 2014.  The children are born from an Islamic marriage concluded on 26 December 2010 between the parties.

[2]        In addition to the above application, the applicant has also brought a second application under case number 4266/2017 for the eviction of the respondent in terms of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act, Act 19 of 1998 (hereinafter referred to as “PIE”).  The third issue relates to maintenance and that application was filed in the maintenance court.

 

Parties

[3]        The applicant is the father of the minor children. He is a self-employed businessman residing in Port Elizabeth.  The respondent is the mother of the minor children and currently employed at Maritime Motors and in Port Elizabeth.           

 

Factual background:       

[4]        The applicant and respondent were married in accordance with Islamic law on 26 December 2010 in Port Elizabeth.

[5]        In March 2017 the applicant issued the first Talaq.  On 10 September 2017, a second Talaq was issued.  It was on this day that the respondent briefly moved out of the common home.

[6]        As a result of an urgent application, this court, on 19 September 2017, issued an order by agreement between the parties.  The order directed that the Family Advocate investigate and report as to the caregiving and access arrangements that would best serve the interests of the minor children and an interim order regulating the access and care arrangements. The application was then postponed to 5 December 2017.

[7]        On 5 December 2017 the Family Advocate report was not complete and the application then further postponed to 19 January 2018.   

[8]        The application came before Eksteen J on 29 March 2018 and as a result thereof, an interim order was granted.  

[9]        The following order was handed down on 29 March 2018:     

                        “1.        The matter is postponed to 14 June 2018.

 

2.         The costs occasioned by the postponement are reserved.

3.         Pending the finalisation of the main application:

           

3.1    The applicant has full parental rights and responsibilities in respect of the parties’ children being Y K, a boy born on 16 April 2012 and I K, a girl born on 17 January 2014.

3.2    The applicant and the respondent are co-guardians of the children.

 

4.        An order declaring the respondent shall primarily care for the children subject to the applicant’s right of reasonable access which access shall include but not necessarily be limited to:

            4.1    the right to take them in his care every alternate weekend from Thursday after school to Monday morning before school;

            4.2    the right to, in his non-contact week, have the children in his care as from after school on a Thursday until Friday when he shall return them to the respondent after Mosque until 18h00 when he returns them to the respondent;

            4.3    the right to share all school holidays, with the children residing one week at a time with each parent during the long school holidays;

            4.4    the children shall be in the care of the respondent as from 29 March 2018 and in the care of the applicant as from 07h30 on 4 April 2018 until 9 April 2018 at 18h00 when he shall return them to the respondent.

 

5.        Until such time as the children/a child commences formal primary school as from Grade 1, and whilst the respondent remains employed full day, the children shall continue to be cared for week days by the paternal grandmother, Yumnah Kapery, after school until collection by either the respondent or the applicant.

6.        An order directing that the following arrangements shall be implemented in respect of the caregiving of the children:

            6.1    The children shall be with the applicant on his birthday and Father’s Day and with the respondent on her birthday and Mother’s Day.

 

            6.2    Both parents shall be entitled to reasonable telephonic contact at all reasonable times.

            6.3    The parents shall alternate the September school holidays from year to year.

            6.4    The parties shall share the time with the children on Eid each year.

            6.5    New Year’s Day shall alternate between the parties from year to year.

            6.6    The parties shall each be entitled to spend time with the children on the children’s respective birthdays, irrespective of in which parent’s care the minor children may be at a particular point, with the non-contact parent being entitled to at least four hours’ contact with the child on that particular day as arranged between the parties by prior agreement.”

 

[10]     From the applicant’s founding affidavit it is apparent that the marriage had dissolved in accordance with Muslim Rites on 17 September 2017 and the respondent completed her period of Iddat since the dissolution of the marriage on 5 December 2017.

Issues

[11]     The main issue is whether the applicant is entitled to final relief sought.

 

The law

[12]     Section 23 of the Children’s Act, No. 38 of 2005 stipulates that:        

“(1)      Any person having an interest in the care, wellbeing or development of a child may apply to the High Court, Divorce Court in divorce matters or the Children’s Court for an order granting to the applicant, on such conditions as the court may deem necessary –

            (a)       contact with the child;  or

            (b)       care of the child.

 

(2)       When considering an application contemplated in sub-section (1) the court must take into account –

            (a)       the best interests of the child;

            (b)        the relationship between the applicant and the child, and any other relevant person than the child;

            (c)        the degree of commitment that the applicant has shown towards the child;

            (d)        the extent to which the applicant has contributed towards the expenses in connection with the birth and maintenance of the child;  and

            (e)        any other fact that should, in the opinion of the court be taken into account.

 

(3)       If in the course of the court proceedings it is brought to the attention of the court that an application for the adoption of the child has been made by another applicant, the court –

            (a)        must request the family advocate, social worker or psychologist to furnish it with a report and recommendation as to what is in the best interests of the child;  and

            (b)        may suspend the first-mentioned application on any conditions it may determine.

 

(4)       The granting of care and contact to a person in terms of this section does not affect the parental responsibilities and rights that any other person may have in respect of the same child.”

 

[13]     The parties are, according to Sections 19 and 20 of the Children’s Act, Act 38 of 2005 (hereinafter referred to as “the Children’s Act”) and by virtue of their Islamic marriage, co-holders of full parental rights and responsibilities in respect of their children, as defined in Section 18 of the Children’s Act.

[14]     On 19 September 2018, Judge Revelas issued an order by agreement between the parties in the following terms:-

“That the Family Advocate be directed to forthwith investigate and report on the caregiving and access arrangements that would serve the interests of the children.”

 

[15]      It is as a result of the aforementioned order that the Family Advocate’s office filed a report.

[16]      The Family Advocate’s report makes the following recommendation:

“That the parties retain full parental rights and responsibilities in respect of the children born of their dissolved marriage, subject to the following arrangements:

1.         The children shall primarily reside with their mother, the respondent.

2.         The applicant shall have reasonable contact with the children, structured as follows but not limited to –

 

every alternative weekend, from a Thursday after school to a Monday before school.

 

3.         In the event that the applicant is working on a Saturday during his weekend contact with the children, the applicant shall ensure that the children receive contact with their maternal grandmother on a Saturday for a time period agreed between the applicant and the maternal grandmother.  During the weeks that precede the respondent’s weekend with the children, the applicant shall have sleepover contact with the children on a Wednesday and a Thursday night. 

4.         Until such times that the children/a child commences formal primary school, i.e. Grade 1, and in the event of the respondent not being personally available to care for the children after school, and the paternal grandmother remains available to provide for the aftercare of the children, the children shall be cared for by the paternal grandmother from after school until their parents finish work.

5.         The parents will share school holidays and the children to reside one week at a time with each parent during the school holidays.

6.         If the parents’ circumstances change and they are unable to reach an agreement regarding the minor child, they may approach a qualified mediator and attempt to resolve the conflict through a co-operative process of mediation before they resort to litigation.  The agreement can then be drafted in a parenting plan which can then be made an order of court.

 

Applicant’s submissions

[17]     Ms Veldsman for the applicant, argued that despite the eviction application and another maintenance application in the Maintenance Court, the applicant was entitled to final relief with regard to the contact and access arrangements of the minor children.  She further argued, that the interim order was in place since March 2018 and as to date, there have been no complaints with regard to the manner in which the order has been effected.  This has been the routine for the past six months and no facts have been put up as to why the recommendation should not continue.

[18]     In addition, she further contended that despite the maintenance application in the Maintenance Court, this court had jurisdiction to entertain the dispute and make a final order with regard to the care and access of the minor children.  Such an order would be in line with the report from the Family Advocate’s office.

[19]     Ms Veldsman argued, that the eviction application which was brought by the applicant has nothing to do with the access and contact application.  The eviction is a separate action under Section 4 of PIE.

 

Respondent’s submissions

[20]     Ms Olowookorun, for the respondent, argued that the issues stem from a Muslim divorce and that this Court could not entertain the care and contact application.  She further submitted that the care and contact application should be heard after the finalisation of the maintenance and eviction applications. 

[21]     In addition thereto, she relied heavily on the comments made by Eksteen J on 29 March 2018 where he commented that:

“The applicant would run a risk that the Court will find that we cannot make a decision until we have finality on the financial arrangements and that will retard it further.”

 

[22]     As a result of the view expressed, the respondent’s representative indicated that this application and the other applications must be dealt with in totality.  No final maintenance order has been granted in this matter as to date and that a final order could not be granted.

[23]     Ms Olowookorun argued that both the maintenance issue and the eviction application should be first be finalised as this would have an impact on the care and access application.  She furthermore contended that there was a gap in the Family Advocate’s report and that the Court could not make a decision until the maintenance matter was finalised.

[24]     She furthermore indicated that there was a vast difference between the interim order granted and the final order sought by the applicant.  She furthermore held the view that if the Court was inclined to grant the final order that it should be in line with the Family Advocate’s report, alternatively the interim order.

 

Analysis

[25]     It is trite that in custody and access cases, that the best interest interest of the children receive the highest consideration.

[26]     The Family Advocate report, recommends that both parties are to enjoy parental rights and that the primary residence remains with the respondent.

[27]     With regard to the respondent’s submissions that this matter should be concluded after the eviction application is heard and the Maintenance Court has pronounced on the issue of maintenance,  I have taken cognisance of the comments in the Family Advocate report in relation to the change in accommodation and the following remarks were made:

“It needs to be stated that any significant change in the parties’ housing circumstances, may receive a further consideration of recommendation made herein. However at the time of concluding her inquiry, the parties each indicated to Ms Van Vuuren that they should find suitable accommodation once the financial issues of the divorce are settled and with both parties being gainfully employed a significant change in this regard is not expected.”

 

[28]     In addition to the above, it is evident from the report that the Family Advocate made a further recommendation :

“If the parties’ circumstances change and they are unable to reach an agreement regarding the minor child, they may apporach a qualified mediator and attempt to resolve the conflict through co-operative process of mediation before they resort to litigation. The agreement can then be drafted in a parenting plan, which could be made an order of court.”

 

[29]     Ms Botha, for the office of the Family Advocate was in court and specifically indicated that the Family Advocate’s office could not file a further supplementary report. There was no additional information to be added to it. Despite this, it is evident that the Family Advocate endorses access and contact in very specific terms.

[30]     The question thus arises whether the order sought is in the best interest of the children.

[31]     A child's best interests are of paramount importance in matters concerning the child.[1]  In all matters concerning the care, protection and well­ being of a child the standard that the child's best interest is of paramount importance, must be applied.[2]

[32]       The Children's Act provides, in section 7(1), factors that must be taken into consideration where relevant, namely:

“(a)       the nature of the personal relationship between-

 

                   i.              the child and the parents, or any specific parent; and

                  ii.              the child and any other care-giver or person relevant in those circumstances;

 

(b)       the attitude of the parents, or any specific parent, towards­

                       i.             the child; and

                      ii.             the exercise of parental responsibilities and rights in respect of the child;

 

(c)         the capacity of the parents, or any specific parent, or of any other care­ giver or person, to provide for the needs of the child, including emotional and intellectual needs;

(d)        the likely effect on the child of any change in the child's circumstances, including the likely effect on the child of any separation from-

                       i.             both or either of the parents; or

                       ii.             any brother or sister or other child, or any other care-giver or person,     with whom the child has been living;

(e)       the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;

(f)        the need for the child-

                       i.             to remain in the care of his or her parent, family and extended family; and

                      ii.             to maintain a connection with his or her family, extended family, culture or tradition;

 

(g)          the child's-

                       i.             age, maturity and stage of development;

                      ii.             gender;

                     iii.             background; and

                     iv.             any other relevant characteristics of the child;

 

(h)        the child's physical and emotional security and his or her intellectual, emotional, social and cultural development;

(i)        any disability that a child may have;

(j)         any chronic illness from which a child may suffer;

(k)      the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;

(l)        the need to protect the child from any physical or psychological harm that may be caused by-

                   i.         subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or

 

                   ii.       exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person;

 

(m)      any family violence involving the child or a family member of the child; and

(n)      which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child.”

 

[33]     All the above factors have been taken into account by the Family Advocate and I have considered these factors in relation to the papers before me. As a result, I am of the view, that a final order in this instance would be in the best interest of the children. It was argued by the respondent that if I was inclined to grant the order, it should be in line with the recommendation of the Family Advocate’s report. The draft order is similar to the interim and recommendation of the Family Advocate, however Ms Veldsman in her submission argued that the interim order has been implemented since March 2018. I am of the view that the children are now familiar with the routine in line with the interim order and accordingly, it should be made a final order.

[34]     As a result I make the following order:

            (a)     The applicant has full parental rights and responsibilities in respect of the parties’ children, being Y K, a boy born on 16 April 2012 (“Y”) and I K, a girl born on 17 January 2014 (“I”).

            (b)     The applicant and the respondent are co-guardians of the children.

            (c)     The respondent shall primarily care for the children subject to the applicant’s right to reasonable contact, which contact shall include but not be limited to:

                     (i)      the right to take the children in his care every alternative weekend from Thursday after school to a Monday morning before school;

                     (ii)     the right to, in his non-contact week, have the children in his care as from after school on a Thursday until Friday when he shall return the children to the respondent after Mosque at 18h00;  and  

                     (iii)    the right to share all school holidays with the children residing one  week at a time with each parent during the long school holidays.

            (d)     Until such time as the children/a child commences formal primary school as from Grade 1, and whilst the respondent remains employed full day, the children shall continue to be cared for week days by the paternal grandmother, Yumnah Kapery, after school until collection by either the respondent or the applicant.

            (e)     An Order directing the following arrangements shall be implemented in respect of the care-giving of the children:

                    

                     (i)      the children shall be with the applicant on his birthday and Father’s Day and with the respondent on her birthday and Mother’s Day;       

                     (ii)     both parents shall be entitled to reasonable telephonic contact at all reasonable times;

                     (iii)    the parents shall alternate the September school holidays from year to year;  

                     (iv)    the applicant and respondent shall share time with the children on Eid each year;

                     (v)     New Year’s Day shall alternate between the parties from year to year;

                     (vi)    the applicant and respondent shall be entitled to spend time with the children on the children’s respective birthdays, irrespective of in which parent’s care the children may be at that particular point, with the non-contact parent being entitled to at least four hours’ contact with the child on that particular day as arranged between the parties by prior agreement.

            (f)      Each party to pay his/her own costs of the application under case number 3132/2017.

 

 

L AH SHENE

ACTING JUDGE OF THE HIGH COURT

 

 

For the applicant                          :           Adv Veldsman

Instructed by                                :           Anthony-Gooden Inc

                                                                        PORT ELIZABETH

                                                                        Ref:  J Anthony-Gooden

                    

For the respondent                      :           Ms Olowwokorun

Instructed by                                :           Bukky Olowookorun Attorneys

                                                                        PORT ELIZABETH

 

Date heard                                      :           11 October 2018

Date delivered                                 :           13 November 2018

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